Judge: Edward B. Moreton, Jr, Case: 24SMCV05059, Date: 2025-01-13 Tentative Ruling

Case Number: 24SMCV05059    Hearing Date: January 13, 2025    Dept: 205

Superior Court of California

County of Los Angeles

Beverly Hills Courthouse | Department 205

Background

On October 15, 2024, Plaintiff Parvin Mesri (“Plaintiff”) filed a complaint against Defendants Diana Shamoeil (“Shamoeil”), Rochelle Sterling and Donald T. Sterling, as Trustees of the Sterling Family Trust (the “Sterling Defendants”), Beverly Hills Properties LLC dba Sterling International Towers (“BHP”), and Does 1-20, alleging causes of action for: (1) assault, (2) battery, (3) intentional infliction of emotional distress, (4) negligence, (5) negligent hiring and supervision, and (6) premises liability. Plaintiff alleges that on May 11, 2024, she was visiting a friend at the Sterling International Towers when she was attacked with no security supervision. (Compl., ¶¶ 15-17.) Plaintiff alleges that she suffered severe injuries as a result of the attack. (Compl., ¶ 17.)

On December 16, 2024, Plaintiff filed the instant Motion for Trial Setting Preference.

On December 30, 2024, the Sterling Defendants and BHP (collectively, “Defendants”) filed an opposition to the motion.

On January 6, 2025, Plaintiff filed a reply brief.

Motion for Trial Preference Standard

            “On petition of any party over 70, section 36, subdivision (a), provides that the granting of calendar preference is mandatory in some circumstances.” Fox v. Superior Court (2018) 21 Cal.App.5^th 529, 533. A court must grant a trial preference under Code Civ. Proc. § 36(a) where the following two factors are present: (1) the party has a substantial interest in the action as a whole; and (2) the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. Ibid. Where a motion for trial preference is granted, the clerk shall set the case for trial not more than 120 days from that date. Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 694. “[S]ection 36, subdivision (a) . . . is mandatory and absolute in its application and does not allow a trial court to exercise inherent or statutory general administrative authority it would otherwise have.” Id. at p. 692.

            The purpose of Code Civ. Proc. § 36 is “to avoid an irrevocable loss of a qualifying plaintiff’s substantive right to a trial during his or her lifetime and to potential recovery of damages that would not survive plaintiff’s pretrial death.” Koch-Ash v. Superior Court, supra, 180 Cal.App.3d 689, 694. A motion for trial preference does not require a doctor’s declaration and “may be supported by nothing more than an attorney’s declaration based upon the information and belief as to the medical diagnosis and prognosis of any party.” Fox v. Superior Court, supra, 21 Cal.App.5^th 529, 534, citation omitted [explaining that an attorney declaration under CCP § 36.5 can consist entirely of hearsay and conclusions.]. “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. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36.” Code Civ. Proc., § 36.5.

            “The application of section 36, subdivision (a), does not violate the power of trial courts to regulate the order of their business. Mere inconvenience to the court or to other litigants is irrelevant.” Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085. “[W]hen ruling on a motion for preference in trial setting, the trial court must consider the total picture, including the court’s calendar, dilatory conduct by the [moving party], prejudice to the defendant in the event of an accelerated trial date, and the likelihood of an eventual mandatory dismissal if the request for a preferential trial date is denied.” Mitchell v. Frank R. Howard Memorial Hospital (1992) 6 Cal.App.4^th 1396, 1404.

Analysis

Evidence in Support of the Motion

            In support of the motion, Plaintiff’s counsel, Taylor S. Kruse, Esq. (“Kruse”), provides a declaration. Counsel states that: this case arises out of an attack that took place at the premises owned, maintained, leased, rented and otherwise controlled by Defendants. (Kruse Decl., ¶ 1.) Plaintiff was attacked with a skateboard on the premises and suffered severe injuries as a result. (Kruse Decl., ¶ 1.) All Defendants in this matter have been served. (Kruse Decl., ¶ 3; Exh. A, B.) Plaintiff is 82 years old and suffers from poor health. (Kruse Decl., ¶ 4.) This poor health includes the injuries suffered in the subject accident, as well as a prior broken clavicle which affects her breathing and chronic cardiovascular conditions. (Kruse Decl., ¶ 5.) Counsel states that “Plaintiff’s substantive right to trial during her lifetime is at risk if she is not granted a trial preference . . . .” (Kruse Decl., ¶ 6.)

Evidence in Opposition to the Motion

            In opposition to the motion, counsel for Defendants, Greg A. Garbacz (“Garbacz”), provides a declaration. Mr. Garbacz indicates that since being served, Defendants have began preparing written discovery to serve on Plaintiff and investigating the circumstances of the alleged assault incident. (Garbacz Decl., ¶ 4.) Defendants anticipate the need to conduct additional discovery and are preparing dispositive motions “regarding individual liability issues and other grounds that will require adequate time for preparation, filing, and hearing pursuant to Code of Civil Procedure § 437c.” (Garbacz Decl., ¶¶ 5, 6.) Setting trial within 120 days would severely prejudice Defendants’ ability to prepare their defense and exercise their due process rights in this matter. (Garbacz Decl., ¶ 8.)

            Plaintiff Has Not Shown That a Trial Preference is Warranted

The Court finds that Plaintiff has not made a showing that a trial preference is necessary to prevent prejudicing her interest in the litigation. Although the Court finds that Plaintiff has provided evidence that she is over the age of 70, and the Court finds that she has a substantial interest in this action, Plaintiff has not satisfied CCP § 36(a)(2). Here, Plaintiff’s counsel attests to injuries suffered from the incident, as well as a prior broken clavicle which impacts her breathing and unspecified chronic cardiovascular conditions. (Kruse Decl., ¶ 5.) However, counsel has not unequivocally stated that Plaintiff’s health “is such that a preference is necessary to prevent prejudicing . . . [Plaintiff’s] interest in the litigation. Code Civ. Proc., § 36, subd. (a)(2). The Court fails to see how such conditions, without an attestation that Plaintiff will be prejudiced absent a trial preference, warrants a preferential trial setting. Plaintiff has not satisfied CCP § 36(a), which is the basis upon which the motion is brought.

Conclusion

Based on the foregoing, Plaintiff’s Motion for Trial Setting Preference Pursuant to CCP § 36 is DENIED.

Dated: January 13, 2025

__________________________________________

Edward B. Moreton, Jr.

Judge of the Superior Court