Judge: H. Jay Ford, III, Case: 23SMCV04446, Date: 2023-12-14 Tentative Ruling

Case Number: 23SMCV04446    Hearing Date: December 14, 2023    Dept: O

Case Name:  Ronny Graham v. Lee Samson, et al.  

SUBJECT:                 MOTION FOR TRIAL PREFERENCE

MOVING PARTY:   Plaintiff Ronny Graham

RESP. PARTY:         No Response as of 12-6-23

TENTATIVE RULING

            Plaintiff Ronny Graham’s Motion for Trial Preference is DENIED. Plaintiff did not provide clear and convincing medical documentation showing Plaintiff Ronny Graham suffers from an illness or condition raising substantial medical doubt of survival beyond six months under CCP § 36(d).       

            CCP §36 subdivision (d) states: “[i]n 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.”  See, Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534 [“The heightened clear and convincing proof standard is required for motions seeking discretionary grants of preference under [CCP 36] subdivision (d), but not for motions seeking mandatory preference under subdivision [CCP 36] (a).”].)

            Plaintiff Ronny Graham (“Graham”) is sixty-seven (“67”) years old, thus CCP § 36(d) applies. “The standard of proof known as clear and convincing evidence demands a degree of certainty greater than that involved with the preponderance standard, but less than what is required by the standard of proof beyond a reasonable doubt. This intermediate standard requires a finding of high probability.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 998, citations omitted; see CACI No. 201 [“Certain facts must be proved by clear and convincing evidence .... This means the party must persuade you that it is highly probable that the fact is true”].) “Clear and convincing evidence requires a finding of high probability . . . requiring that the evidence be so clear as to leave no substantial doubt; sufficiently strong to command the unhesitating assent of every reasonable mind.” (In re Angelia P. (1981) 28 Cal.3d 908, 919.)

            Graham argues, pursuant to the Declaration of Shahab Attarchi (“Dr. Attarchi”), a “hospitalist with over 20 years of experience,” that he is unlikely to survive another six (6) months due to Graham’s “medical history of hypertension, cerebral vascular accident with residual left sided weakness, aphasis, dysphagia, sepsis, liver disease and elevated enzymes, gout, high cholesterol, contractures, benign prostatic hyperplasia, severe muscle atrophy and muscle weakness.” (Motion, p. 1; Attarchi Decl., ¶¶ 6, 8, 9.) Dr. Attarchi declares he recently examined Graham on October 3, 2023 and reviewed Graham’s medical history which led Dr. Attarchi to the conclusion that Graham “is in significant ill health and that there exists a substantial medical doubt that Ronny Graham has more than six months to live.” (Attarchi Decl., ¶¶ 6, 7, 8.)  Grahm did not submit any medical records or other documentation of the “medical history” Dr. Attarchi reviewed.

            The Samson Defendants provide a declaration from Dr. Joshua Rassen, MD (“Dr. Rassen”) and attached Graham’s medical records utilized by Dr. Rassen in support of his conclusion that “there is no rationale in the medical records as to why Graham's longevity is expected to be less than 6 months,” and “Graham appears to be in stable health with chronic changes due to his stroke.” (Rassen Dec., ¶¶ 29, 30.) Dr. Rassen disputes Dr. Attarchi’s finding that Graham’s 2-7-23 protein levels were low by stating “the medical records show that on February 7, 2023, the protein level was normal; his albumin level was 3.5, within the normal range of 3.5 to 5.7.” (Rassen Decl., ¶ 15, Ex. D, GrahamWPACH-05985.) Further, Dr Attarchi declares that Graham’s overall protein level was 6.4 on 2-7-23, when in fact the 2-7-23 test shows a total protein level of 6.1. (See Ex. D, GrahamWPACH-05985.) The 6.1 figure is listed in red and placed in the “out of range” category, however Dr. Attarchi appears to compare this total protein level with Graham’s recommended albumin levels, thus conflating two separate reference ranges. (Attarchi Decl., ¶ 9, p. 3:3–5; Rassen Decl., ¶ 15.) The Court notes that Neither Dr. Attarchi nor Dr. Rassen adequately describe what a low 6.1 protein level means in relation to the reference range of 6.4–8.9 as listed in Graham’s 2-7-23 test. (See Ex. D, GrahamWPACH-05985.) However, the 6.1 figure is preceded by the letter L in red ink, which according to the medical record indicates a “low” figure, not critically low or CL, not critical or AA, and not abnormal or A, all of which appear to indicate worse diagnoses than an L listing.

            Dr. Rassen argues that “[w]hile it is correct that Mr. Graham had abnormal liver tests one year ago, back in November and December 2022, [Ex. D, Graham-WPACH-05971; 05983] when the repeat liver function testing was completed in February 2023, the liver function was found to be entirely normal, which Dr. Attarchi did not mention in his declaration. [Ex. D, GrahamWPACH-05985]. Extensive tests for infection and other causes of liver disease were normal. [Ex. D, Graham-WPACH-05971; 05980].” The Court finds that Dr. Rassen’s analysis appears to be correct, as the 2-7-23 test shows all normal levels other than a low, not critically low or critical, protein level of 61. The 2-7-23 test, which Dr Attarchi does not reference other than to conflate figures to argue his position, appears to show Graham’s health has considerably improved from the previous testing which took place in November and December of 2022. Thus, the Court finds that Graham, and his expert Dr. Attarchi, have not provided clear and convincing evidence to persuade the Court that there is substantial medical doubt Graham will not live longer than six months.