Judge: Frank M. Tavelman, Case: 25NNCV01423, Date: 2025-05-22 Tentative Ruling

Case Number: 25NNCV01423    Hearing Date: May 22, 2025    Dept: A

MOTION FOR TRIAL PREFERENCE

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Richard Knickerbocker, by and through his Guardian ad Litem, Saloi Knickerbocker (Plaintiff) brings this action against 1338 20th Street LLC, 1338 Santa Monica Partners LLC, and Santa Monica Rehab Holdings, LLC (Defendants). Plaintiff states causes of action for Elder Abuse and Negligence in connection with his stay at various of Defendants’ skilled nursing facilities.

Before the Court is motion for trial preference brought by Plaintiff. Plaintiff moves pursuant to C.C.P. § 36(a), arguing that his age and medical condition are such that a preferential trial date is mandatory. Defendants do not object to this request, filing a notice of non-opposition which explicitly concedes that Plaintiffs’ showings are sufficient to obtain mandatory relief.  Defendants do urge the Court in their non-opposition to consider the implications upon Defendants’ due process rights should the trial be accelerated. Plaintiff replies and argues that such considerations are improper upon a motion pursuant to C.C.P. § 36(a).

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

As a preliminary matter, the Court finds the Defendants’ argument in their non-opposition to be misplaced. The Court may not balance the opposing interests of litigants in considering a motion for preference under C.C.P. § 36(a). (See Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1086 [“Failure to complete discovery or other pre-trial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36. The trial court has no power to balance the differing interests of opposing litigants in applying the provision.”].)

Accordingly, all that remains is to determine is whether Plaintiff has satisfied both requirements of C.C.P. § 36(a). To that end, Plaintiff submits the declaration of Shahab Attarchi, M.D. (Attarchi). Attarchi bases his declaration on his own examination of Plaintiff on March 27, 2025, as well as his review of Plaintiff’s medical records. (Attarchi Decl. ¶ 6.) Specifically, Attarchi testifies that Plaintiff is an 86 year-old man suffering from a great deal of medical complications which have rendered him bedridden and legally blind. (Attarchi Decl. ¶ 8.) Attarchi states that, based upon his examination and review, there exists a substantial medical doubt that Richard Knickerbocker has more than six months to live. (Attarchi Decl. ¶ 7.)

As previously stated, Defendants do not contest the validity of the statements in the Attarchi declaration. The court agrees with Plaintiff, and Defendants, that this declaration is sufficient to satisfy both showings required by C.C.P. § 36(a). Accordingly, the motion is GRANTED. The Court sets a Trial Setting Conference for May 29, 2025 at 10:00 a.m.

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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 

Richard Knickerbocker’s Motion for Trial Preference came on regularly for hearing on May 22, 2025, 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 IS GRANTED.

A TRIAL SETTING CONFERENCE IS SET FOR MAY 29, 2025 AT 10:00 A.M. IN BURBANK DEPT. A.

 PLAINTIFF TO GIVE NOTICE.