Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from a car accident.  Plaintiff Erol Besincioglu was traveling on the 405 freeway when traffic slowed and he was rear-ended by a freightliner truck driven by Defendant Gerson Efrain Monterroso, causing him to collide with a third car.  At the time of the accident, Monterroso was driving in the course and scope of his employment with Defendant Leo’s Truck Service, Inc.  As a result of the accident, Plaintiff suffered severe injuries and significant damage to his car.   

Plaintiff’s complaint alleged three claims for negligence/negligence per se, negligent entrustment and negligent hiring and supervision.  The complaint was filed on March 13, 2024.  (Id.)  Defendants filed an answer on May 3, 2024.   

This hearing is on Plaintiff’s motion for trial preference.  Plaintiff seeks a preferential trial date due to his advanced age (72 years old) and his compromised health (pain in his neck and left knee and a declining mental condition).  Trial is currently set for December 7, 2026.  Plaintiff seeks to set the trial at the earliest possible date, not more than 120 days from the granting of his motion.   

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 72 years old.  (Shiels Decl. ¶ 2.)¿ Thus, he 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 negligence per se, negligent entrustment and negligent hiring and supervision.  Plaintiff has a substantial interest in bringing these claims against Defendants to resolution.¿   ¿¿¿ 

However, the Court concludes that Plaintiff has not sufficiently shown that a preference is necessary to prevent prejudicing his interest in the litigation.  Plaintiff’s counsel attests that as a result of the accident, Plaintiff sustained injuries to his neck and left knee, and his physical condition has not fully resolved as he still experiences pain in his neck and left knee, which worsens with activity.  (Shiels Decl. ¶ 3, 4.)  But there is no indication that this pain prevents Plaintiff from participating in the prosecution of his action, or that he is likely to suffer a significant decline in his physical health.   

At his deposition, Plaintiff testified that he had not received treatment in the last year for his neck. (Decl. Fleming ¶4, Ex. A, Plaintiff’s Depo. Pg. 44:23-25.)  His knee pain occurs approximately once a month (Decl. Fleming ¶4, Ex. A, Plaintiff’s Depo. Pg. 50:7-15), and his low back issues are infrequent. (Decl. Fleming ¶4, Ex. A, Plaintiff’s Depo. Pg. 51:7 17). Of significance, Plaintiff testified he had no appointments for future treatment related to these injuries. (Decl. Fleming ¶4, Ex. A, Plaintiff’s Depo. Pg. 52:10-16)  

Further, Plaintiff’s deposition was conducted via Zoom, as Plaintiff was visiting Turkey. (Decl. Fleming ¶4, Ex. A, Plaintiff’s Depo. Pg. 10:18-20) Plaintiff stated he had no issues traveling from his home in California to Turkey. (Decl. Fleming ¶4, Ex. A, Plaintiff’s Depo. Pg. 60:11-18).  Accordingly, his physical condition does not appear to be debilitating.   

Plaintiff also claims his mental condition warrants preference.  According to Plaintiff’s son, Plaintiff has recently been experiencing cognitive decline.  (Besincioglu Decl. ¶ 2.)  He forgets whether he has used the bathroom, leading to accidents at home and in public places. (Id. ¶ 3.)  Plaintiff frequently does not remember where he has parked his car, causing distress and confusion.  (Id.)  He regularly misplaces his tools and other personal items, unable to recall where he last placed them.  (Id.)  On multiple occasions, Plaintiff has forgotten to turn off the water in his sinks.  (Id.)  According to Plaintiff’s son, these incidents are not isolated and have become increasingly frequent and concerning.  (Id. ¶ 4.)       

However, there is no indication Plaintiff is being seen for this alleged mental condition.  There is also no indication that Plaintiff’s mental decline is such that it would impair his ability to think, speak, understand or remember.  In other words, there is no link between Plaintiff’s health conditions and his ability to prosecute this action.   

CONCLUSION 

Based on the foregoing, the Court DENIES Plaintiff’s motion for trial preference.   

 

IT IS SO ORDERED. 

DATED: March 4, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court