Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a negligence case.  Plaintiff Ona Dawes brings a medical malpractice claim against Defendant Regents of the University of California (“Regents”) and a premises liability claim against Defendant Martin Hair Salon LLC d/b/a Hairy and Beauty by Martin (“Martin”).   

The case was originally filed on February 1, 2024 against Regents and Dr. Andrea Rapkin.  (Glickman Decl. ¶ 2.)  Dr. Rapkin has since been dismissed.  (Id.)  While service on the initial defendants was pending, Plaintiff was injured on March 2, 2024 at the hair salon.  (Id.) Plaintiff claims there is an overlap in the injuries she suffered as a result of Regents’ and Martin’s alleged negligence.  (Id.)  

Plaintiff’s first amended complaint (“FAC”) including the allegations against Martin was filed on March 22, 2024.  (Id.)  All parties have now been served with the FAC.  (Id.)   

This hearing is on Plaintiff’s motion for trial preference.  Plaintiff seeks a preferential trial date due to her advanced age (73 years old) and her compromised health (including lung cancer, fractures to her spine, and a heart condition).  (Dawes Decl. ¶2.)  Plaintiff seeks to set the trial at the earliest possible date, not more than 120 days from the granting of her motion.  (Motion at 6:4-7.)  Martin does not oppose the motion but asks that discovery (Plaintiff’s deposition and examination) be conducted on shortened notice.  Regents has not filed an opposition as of the posting of this tentative ruling.   

LEGAL STANDARD 

¿“A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings:¿(1) The party has a substantial interest in the action as a whole.¿(2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.”¿ (Code Civ. Proc., § 36(a).)¿¿“An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party.”¿ (Code Civ. Proc., § 36.5.)¿¿¿ 

“Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.”¿ (Code of Civ. Proc. § 36(e).)¿¿ 

“The trial court has no power to balance the differing interests of opposing litigants in applying [CCP § 36]. The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations.”¿ (Swaithes v. Superior Court¿(1989) 212 Cal.App.3d 1082, 1085-86;¿see¿also¿Vinokur v. Superior Court¿(1988) 198 Cal.App.3d 500, 503 (“[T]here can be no inroads into the mandate of section 36.”).)¿¿¿ 

DISCUSSION 

Plaintiff is entitled to mandatory trial preference under Code Civ. Proc. § 36.  Plaintiff is 73 years old.  (Dawes Decl. ¶ 2.)¿ Thus, she meets the threshold requirement for a trial preference under Code Civ. Proc. § 36.¿ 

The Court also finds Plaintiff has a substantial interest in the action.  Plaintiff alleges claims for medical negligence and premises liability.  Plaintiff has a substantial interest in bringing these claims against Defendants to resolution.¿   ¿¿¿ 

The Court further finds that Plaintiff’s health is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation:¿ Plaintiff suffers from lung cancer, fractures to her spine, fractures to her left hip and femur, severe sprains to her arm, shoulder and wrist, I/T band syndrome, multiple thyroid growth modules, spinal stenosis and a heart condition.  (Id.)   Under these circumstances, Plaintiff will be prejudiced if she does not obtain a trial preference.¿ 

Because the Court finds that Plaintiffs meet the requirements of CCP section 36(a), the Court is required under California Law to grant Plaintiffs’ motion for a trial preference. (Swaithes v. Superior Court¿(1989) 212 Cal.App.3d 1082, 1085-86.)¿ Accordingly, the Court grants Plaintiff’s motion for a trial preference. 

Martin does not oppose Plaintiff’s motion for trial preference.  However, Martin asks that the Court order Plaintiff to (1) appear, testify and produce documents at deposition on a date in June 2024 and on shortened notice, and (2) submit to a physical examination with a defense medical expert on shortened notice.  (Opp. at 4:21-24.)  The Court concludes these requests are reasonable to prevent prejudice to Martin, and the Court has the inherent authority to grant these requests.1 

Plaintiff does not object to these discovery requests, but asks only that the scheduling accommodate her recovery from a neck surgery and that Martin provide the surveillance video of the underlying incident.  The Court concludes these requests are also reasonable.  The Court encourages the parties to work together to schedule the deposition and examination at the earliest possible date and to ensure that all other necessary discovery take place in as expedited a fashion as possible considering the trial preference.    

CONCLUSION 

Based on the foregoing, the Court GRANTS Plaintiff’s motion for trial preference.  “Upon the granting of a motion for preference pursuant to subdivision (b), a party in an action based upon a health provider’s alleged professional negligence, as defined in¿Section 364, shall receive a trial date not sooner than six months and not later than nine months from the date that the motion is granted.”  Based upon the June 10, 2024 hearing date, trial must be set no sooner than December 10, 2024 and no later than March 10, 2025.¿ (Id.)¿ The Court sets trial for December 10, 2024 at 9:00 a.m., with a final status conference on December 3, 2024 at 9:00 a.m. 

 

IT IS SO ORDERED. 

 

DATED: June 10, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court