Judge: Frank M. Tavelman, Case: 23BBCV02494, Date: 2024-01-05 Tentative Ruling

Case Number: 23BBCV02494    Hearing Date: January 5, 2024    Dept: NCA

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR TRIAL PREFERENCE

NOTICE:

The Court is requesting argument on the issue of whether Plaintiff’s poor memory and inability to communicate when balanced against the Defendant’s due process rights would justify denying the request.  Furthermore, the Court requests additional information concerning the Plaintiff’s ability to testify and her ability to assist counsel with the case.

ALLEGATIONS: 

Josalyn Pitcher (“Plaintiff”) brings this action against Family Care CLHF, Inc. (“Family Care”), Gergen Dumanyan, Tsoghik Karapetyan, and Does 1 through 250 (collectively “Defendants”). Plaintiff alleges that she received subpar medical care while a resident at a hospital operated by Family Care. Plaintiff’s Complaint states a cause of action for (1) Dependent Adult Abuse and (2) Negligence.

Plaintiff now moves for trial preference pursuant to C.C.P. § 36. As Plaintiff is not above the age of 70, her motion is governed by the discretionary provision of C.C.P. § 36(e). Family Care opposes the motion, arguing that Plaintiff has not shown clear and convincing medical evidence of her illness and that they would be unfairly prejudiced if the trial were expedited.

ANALYSIS: 

I.                    LEGAL STANDARD 

C.C.P. § 36(d) provides that “In its discretion, the court may also grant a motion for preference that is accompanied by 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, and that satisfies the court that the interests of justice will be served by granting the preference” The “clear and convincing proof” showing is required for motions seeking preference based purely on illness, though it is not required for motions where the moving party is above 70 years of age. (See Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534.)

II.                 MERITS

Plaintiff presents the declaration of Shahab Attarchi, M.D. (“Attarchi”) in support of her motion. Attarchi is a licensed physician practicing for over 20 years, and states to a reasonable degree of medical certainty Plaintiff’s health has deteriorated such that there is substantial doubt she survives more than six months. (Attarchi Decl. ¶¶ 2-6.) Dr. Attarchi’s opinion is based on a November 5, 2023 medical examination he conducted as well as reviewing Plaintiff’s medical history. (Attarchi Decl. ¶ 6.) Attarchi attests that Plaintiff is a 29-year-old woman with an unfortunate medical history including the following conditions:

cardiac arrest secondary to pulmonary emboli of the lung, anoxic encephalopathy due to poor blood flow to the brain resulting from her cardiac arrest, Stage 4 sacral decubitus ulcer, recurrent osteomyelitis, Stage 2 cervical cancer requiring 10 doses of chemotherapy and radiation therapy, deep vein thrombosis in three places of the left leg, severe anemia, end stage renal disease, chronic oxygen of 2.5 liters/minute, muscle spasticity, hand contractures, mild leg contracture, bilateral foot drop, severe hypertension due to anoxic brain, tracheostomy surgery, significant unintentional weight loss of approximately 42 lbs. in two months, gastrointestinal tube placement surgery, urinary retention from blockage of the uterus and bilateral nephrostomy tubes, and ovarian tube repositioning surgery.

(Attarchi Decl. ¶ 8.)

Attarchi states that Plaintiff’s chemotherapy treatments have complicated the healing process of her pressure ulcer. (Attarchi Decl. ¶ 8.) Attarchi also states that Plaintiff lost 42 pounds over a period of two months, confirmed by a lab report of malnutrition dated November 3, 2023. (Attarchi Decl. ¶ 8.) Attarchi states that Plaintiff’s poor nutrition, low albumin, and low calcium all factor into poor wound healing and an increased risk for additional wound formation which can result in further debility and death. (Attarchi Decl. ¶ 8.) Further, Attarchi states that Plaintiff is currently experiencing a number of infections which antibiotic treatments are unlikely to alleviate. (Attarchi Decl. ¶ 8.) Plaintiff suffers from abnormally high neutrophil count and abnormally low hemoglobin count, resulting in anemia and inhibiting her ability to stave off infection. (Attarchi Decl. ¶ 8.)

In opposition, Family Care submits the declaration of Christopher Davey M.D. (“Davey”). (See McNally Decl. Exh. 1.) Davey states he has served as a primary care physician since 1987 and treated many patients similar to Plaintiff. (Davey Decl. ¶¶ 1-2.) Davey states that, based on his review of Plaintiff’s medical records, Plaintiff “seems to be perfectly stable, based on his description, and could potentially go on as she is for years.” (Davey Decl. ¶ 14.) Davey states that Plaintiff’s cardiac arrest and anoxic encephalopathy are issues which stretch back to 2022. (Davey Decl. ¶ 7.) Davey further states that Stage 2 cervical cancer has a high survival rate and would generally not be an immediate risk to Plaintiff’s life. (Davey Decl. ¶ 8.) Davey states the cervical cancer, leg venous thrombosis, and end stage renal disease were all treated during Plaintiff’s hospitalization. (Davey Decl. ¶¶ 9-10.) Davey states that weight loss is typical in patients with a PEG tube like Plaintiff and that she was described as moderately malnourished in 2022. (Davey Decl. ¶ 12.)

The Court first addresses Family Care’s argument that this motion must be denied for failure to serve a necessary party with process. Family Care argues that Plaintiff failed to serve Tsoghik Karapetyan until two days after the service of this motion on November 15, 2023. The Court notes Plaintiff dismissed Tsoghik Karapetyan as a defendant on December 21, 2023. As such, Family Care’s argument in this regard is moot.

Family Care next argues that Plaintiff has not submitted any declaration of Plaintiff’s durable power of attorney or any of Plaintiff’s treating physicians. Family Care further argues that Plaintiff has submitted no medical records in support of the motion. The Court finds these argument unpersuasive. C.C.P. § 36(e) requires that Plaintiff make a showing of “clear and convincing” illness, but it does not proscribe the method for making that showing. Plaintiff has presented the declaration of a licensed physician in support of her motion which she believes sufficient. Plaintiff’s omission of any medical records or a declaration of her power of attorney is not dispositive of this motion.

What the Court must decide is whether the declaration set forth by Plaintiff constitutes “clear and convincing” evidence of her serious illness warranting trial preference. The Court finds the declaration of Attarchi satisfies this showing and that the declaration of Davey does not refute this showing.

The Attarchi declaration is specifically based on Attarchi’s examination of Plaintiff’s current medical condition on November 5, 2023. Attarchi states that Plaintiff’s health has significantly deteriorated in the past months to where her survival is unlikely. Attarchi further bases his opinion on examination of Plaintiff’s current lab records, reflecting a number of issues which are contributing to her deteriorating health. In contrast, the declaration of Davey is based on the review of unspecified medical records which reflect a reality far from current. Davey states that the most recent lab results he has access to are from January 4, 2023. (Davey Decl. ¶ 13.) Davey has never personally examined Plaintiff and his opinions are based on medical records from 2022 and early 2023 which do not reflect Plaintiff’s current medical reality. While the Court understands Davey’s statement that many of these issues stem from diagnoses that occurred in 2022, the fact remains that Plaintiff has shown complications from these health issue persists to the current day.

In short, Davey’s opinion on the CURRENT condition of Plaintiff’s health is one not sufficiently supported.  Davey’s statement reflects his review of medical records and lab results which are over a year old and do not serve to refute Plaintiff’s showing of current ill health. Accordingly, the Court finds Plaintiff has made an adequate showing under C.C.P. § 36(e).

Family Care argues that they would be prejudiced by the granting of this motion in that their ability to prepare for trial would be substantially impaired. Family Care states that Plaintiff received care from an unknown number of facilities and physicians after her hospitalization. (De Leon Decl. ¶ 4.) Family Care argues that it cannot reasonably be expected to obtain and analyze full medical records for Plaintiff, as well as depose any number of treating physicians, within 120 days.

Citing Swaithes v. Superior Court, Plaintiff argues that the Court cannot weigh any potential denial of due process to Family Care on consideration of this motion. In Swaithes, the California Court of Appeal found that the mandatory provisions of C.C.P. § 36(a) barred consideration of due process upon a motion for trial preference. (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1086.) The Court finds Swaithes to be inapposite to the current motion, in that this motion concerns C.C.P. § 36(e), which is a discretionary provision. The decision to grant or deny trial preference under C.C.P. § 36(e) “rests at all times in the sound discretion of the trial court in light of the totality of the circumstances.” (Salas v. Sears, Roebuck & Co. (1986) 42 Cal. 3d 342, 344.) The Court considers facts such as its calendar, dilatory conduct by Plaintiffs, and prejudice to Defendant in the event of an accelerated trial date (See Mitchell v. Frank R. Howard Memorial Hospital (1992) 6 Cal. App. 4th 1396, 1404.)

In considering the totality of the circumstances, the Court finds that any truncating of discovery by expediting trial would not justify denial of this motion. From its submissions it is clear that Family Care possesses a substantial number of medical records for the relevant time period covering Plaintiff’s assertions of medical negligence. A fortiori, a substantial number of the medical records and other evidence subject to discovery is likely already under Family Care’s control. The same can be said for many potential deponents. While the discovery of Plaintiff’s current medical condition would be on a shortened scale, this alone does not outweigh the substantial likelihood that Plaintiff would die before the case could come to trial otherwise.

Lastly, the Court finds Family Care’s argument that this motion does not fulfill the legislative purpose of C.C.P. § 36 to be unpersuasive. Family Care states the legislative purpose of C.C.P. § 36 is “assuring that an aged or terminally ill plaintiff would be able to participate in the trial of his or her case …” (Looney v. Superior Ct., (1993) 16 Cal. App. 4th 521, 532.) Family Care further states that Plaintiff was noted during her hospitalization to be non-verbal, had severely impaired vision, and suffered from both short and long-term memory impairment. (De Leon Decl. Exh. A.) Family Care appears to argue that Plaintiff’s impairment means that she cannot meaningfully participate in her trial, defeating the purpose of this motion. The Court believes that additional argument is necessary as to this issue. 

Accordingly, the motion for trial preference is SUBJECT TO ADDITIONAL ARGUMENT.

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RULING:

In the event 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 

Josalyn Pitcher’s Motion for Trial Preference came on regularly for hearing on January 5, 2024, with appearances as noted in the minute order for said hearing, and the court has requested additional argument on the matter.   The matter will then be taken under submission.

THE COURT REQUESTS ADDITIONAL ARGUMENT ON THE MOTION FOR TRIAL PREFERENCE.  ¿ 

¿ 

IT IS SO ORDERED.¿ 

DATE:  January 5, 2024                             _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles