Judge: Frank M. Tavelman, Case: 23BBCV01458, Date: 2023-09-29 Tentative Ruling

Case Number: 23BBCV01458    Hearing Date: September 29, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR TRIAL PREFERENCE

ALLEGATIONS: 

Yahya Tahbaz (“Plaintiff”) brings this action against Coldwater Care Center, LLC dba Sherman Village Health Care Center and Longwood Management Corp. (“Defendants”) in connection with a fall Plaintiff suffered on November 13, 2022. Plaintiff alleges he sustained injuries when he slipped on Defendant’s premises.

Plaintiff now moves for trial preference pursuant to C.C.P. § 36 and Defendants oppose.

ANALYSIS: 

I.                    LEGAL STANDARD 

C.C.P. § 36(a) provides in part: “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.”.

Per C.C.P. § 36.5, “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.” (See also Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534 [“a motion under subdivision (a) may be supported by nothing more than an attorney’s declaration “based upon information and belief as to the medical diagnosis and prognosis of any party”].)

II.                 MERITS

Plaintiff submits proof that he is 89 years of age (Exh. A.) Plaintiff also submits the declaration of his counsel, Craig Rackohn, and a note from Darius Gharib, MD (“Dr. Gharib”). Rackhon’s declaration states that Plaintiff suffered a traumatic brain injury (“TBI”) because of the underlying incident. (Rackohn Decl. ¶ 4.) The letter from Dr. Gharib states that Plaintiff is in his care, and he is uncertain whether Plaintiff will remain alive in six months due to “his age, injuries, and health condition.” (Rackohn Decl., Exh B.)

Defendant first argues Plaintiff’s showings fail to meet the “clear and convincing standard” required to grant a mandatory trial preference. The Court finds that Defendant conflates the standard espoused in C.C.P. § 36(a) with that of C.C.P. § 36(d). C.C.P. § 36(d) concerns discretionary relief for those under 70 and requires “clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months.”

“Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that that party’s “health ... is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.” (Fox supra, 21 Cal.App.5th 529, 534.) Appellate authority has made it clear that the standard for mandatory and discretionary trial preferences are separate. To show entitlement to mandatory trial preference, Plaintiff must only show he is over 70 and his health is such that a preference is necessary to prevent prejudice. No showing of clear and convincing medical documentation is required.

Defendant next argues the showings by Plaintiff are insufficient to grant trial preference. Defendant argues the note from Dr. Gharib is insufficient because it is entirely conclusory as to Plaintiff’s condition. Defendant cites to Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, where the court held “…when an expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an expert opinion is worth no more than the reasons upon which it rests.” (Jennings supra, 114 Cal.App.4th 1108, at 1117 [internal quotation and citation omitted].)

The Court finds Defendant’s citation to Jennings is procedurally inapposite. Jennings concerned a motion to strike expert testimony from the trial record. (Id. at 1116.) Nothing in the Jennings decision concerns a motion under C.C.P. § 36 and Defendant cites no authority equating the evidentiary standard for a motion to strike with that of a motion for trial preference.

The Court also disagrees with Defendant’s characterization of Plaintiff’s showings. C.C.P. § 36.5 states that an affidavit by a party’s attorney stated upon information and belief alone can suffice to satisfy that party’s motion for trial preference. This type of affidavit is not commonly accepted in any other motion and is designed to set the bar low when it comes to showings of poor health. Here, Plaintiff has submitted the declaration of his attorney stating he suffers from TBI and a document from his physician expressing doubt as to Plaintiff’s living another six months. The Court finds these showings more than satisfy the requirement of C.C.P. § 36(a).

Further, from Defendant’s opposition it appears they agree that Plaintiff is not in good health. Defendant states in their opposition:

Previous records indicate [Plaintiff] had [a] history of ongoing dizziness and memory loss complaints back in 2021 and 2020 and a small subarachnoid hemorrhage which has not change[d] after repeat imaging. Plaintiff was noted to have encephalomalacia in the right temporal lob[e] prior to this incident in 2021. Encephalomalacia is a serious form of brain damage caused by injury or inflammation

(Oppo. p. 2, Lines 20-24.)

The Court understands Defendant offers the above to rebut Plaintiff’s assertion that his TBI was sustained from the alleged fall. However, the fact remains Defendant is openly arguing Plaintiff suffers from a serious health condition the likes of which can seriously impair his ability to litigate this matter. Defendant cannot argue Plaintiff sustained a serious health condition before the incident while simultaneously arguing Plaintiff has not shown he suffers from such a condition.

Lastly, Defendants argument that they will be prejudiced by the granting of trial preference is misplaced. “Where a party meets the requisite standard for calendar preference based on party's health and status as more than 70 years of age, preference must be granted; no weighing of interests is involved.” (Fox supra, 21 Cal.App.5th 529 at 535.) Having made a sufficient showing, Plaintiff’s request must be granted regardless of effect on Defendant’s ability to prepare for trial.

III.              CONCLUSION

The Court finds Plaintiff’s showing sufficient to establish that preference is necessary pursuant to CCP §36(a).  Accordingly, the motion for trial preference is GRANTED.  Pursuant to CCP §36(f) the Court shall set the trial no more than 120 days from September 29, 2023.

--- 

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Yahya Tahbaz’s Motion for Trial Preference came on regularly for hearing on September 29, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION FOR TRIAL PREFERENCE IS GRANTED.   

TRIAL IS SET FOR JANUARY 22, 2024, AT 10:30 A.M. 

A FINAL STATUS CONFERENCE IS SET FOR JANUARY 18, 2024, AT 9:30 A.M.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF IS TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  September 29, 2023                          _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles