Judge Elaine W. Mandel, Case Number: 23SMCV03393, Date: 2023-12-01 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV03393, Date: 2023-12-01 Tentative Ruling

Case Number: 23SMCV03393 Hearing Date: December 1, 2023 Dept: P

Tentative Ruling

Roshan v. Bedford Apartments, LLC, Case No. 23SMCV03393

Hearing Date December 1, 2023

Plaintiff Roshan’s Motion for Trial Preference

Plaintiff Roshan alleges she sustained injuries after falling on “slippery and defective steps with improper handrailing” at defendant Bedford Apartments, LLC’s property (complaint, p. 4). Roshan, who is ninety-one years old and has dementia, moves for trial preference per Code of Civ. Proc §36. Her son, plaintiff Moheban, sues for negligent infliction of emotional distress.

When a party over 70 moves for trial preference, the court must grant the motion if the party has a substantial interest in the action and the party’s health is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. Code of Civ. Proc. §36.

As plaintiff, Roshan has a substantial interest in case, as she seeks compensation for her injuries. Dr. Peiman Berdjis, her treating physician, states Roshan is 91 years old, suffers from dementia and traumatic brain injury. Id. ¶¶2-5. Dr. Berdjis states her life expectancy is short because of these conditions. Id. ¶6.

Defendants Bedford and Elit Property Management argue Roshan has not provided sufficient evidence regarding her age or health. This is without merit. Defendants argue they will be prejudiced if the motion is granted, since they have not yet been able to conduct discovery, have not been advised of all claims and will not have time to prepare their defense. This appears to be a straightforward slip and fall claim, with the son claiming damages due to NEID.

A trial preference is mandatory when plaintiff meets the conditions of §36(a) (1)-(2). See Cal. Code of Civ. Proc. §36 (“the court shall grant if the court makes both of the following findings”); Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085-86 (“Failure to complete discovery or other pretrial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36.”) Roshan qualifies under §36(a); the statutory language is mandatory.

Trial will be set in 120 days. The court will discuss shortened notice for dispositive motions and scheduling of depositions. The parties are to meet and confer in advance of the hearing regarding dates for depositions, independent medical examinations and motions. GRANTED.

To the extent plaintiff has not responded to discovery, as stated in the opposition, plaintiff is to respond, or the court will discuss scheduling an IDC.