Judge: James L. Crandall, Case: 22-1256271, Date: 2022-10-20 Tentative Ruling
1. Motion for Preference
Plaintiff Masoumeh Kabiri Sharifi’s Motion for Mandatory Preferential Trial Setting is Granted.
The court OVERRULES Plaintiff’s Objections to Declaration of Dr. Khaled Anees, filed 10-11-22 under ROA No. 66.
Code of Civil Procedure section 36, subdivision (a) states that: “(a) 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.”
Section 36.5 states: “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. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36.”
“The issue under subdivision (a) is not whether an elderly litigant might die before trial or become so disabled that she might as well be absent when trial is called. 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.’... [R]equiring a showing of what amounts to likely unavailability for trial, sets the prejudice standard too high.” (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 subdivision (d), but not for motions seeking mandatory preference under subdivision (a).” (Id. at 534.) “Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted. No weighing of interests is involved.” (Id. at 535.) “The clear intent of the Legislature is to safeguard litigants who qualify under subdivision (a) of section 36 against the acknowledged risk that death or incapacity might deprive them of the opportunity to have their case effectively tried and to obtain the appropriate recovery.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.)
Plaintiff moves for an order setting trial within 120 days of the date of this hearing.
Plaintiff argues that trial preference is mandatory pursuant to Code of Civil Procedure section 36(a) because she is 82 years old and her medical condition is such that failure to set a preferential trial date will prejudice her interests in this action. (Motion, 5-7.)
Plaintiff submits the declaration of her counsel, Faud Hahighi (Haghighi) in support of this motion.
Haghighi attests: “On November 15, 2021 Plaintiff presented to neurologist Dr. Ali Elahi, M.D. for neurological evaluation due to complaints of short term memory loss, headaches, cognitive changes, and exacerbation of poor mood. Dr. Elahi diagnosed Plaintiff with postconcussional syndrome, post-traumatic headache, altered mental status, ataxia, cervicalgia and spinal enthesopathy, lumbar region. KABIRI SHARIFI’S adult son Ali Kachueian who lives with her has represented to me that plaintiff is unable to walk without assistance and that she is homebound 95% of the time. He has further represented that she complains of constant dizziness, headaches and suffers severe insomnia where she is only able to sleep for two to three hours a night. She is unable to eat on her own, nor is she able to shower or get dressed without assistance. . KABIRI SHARIFI’S adult granddaughter Nazanin Tadjbakhsh has represented to me that since the incident plaintiff has suffered from memory issues and forgetfulness, such as misplacing her personal items or failing to recall engaging in certain activities. Given Plaintiff’s advanced age and medical diagnosis, I have serious concerns about her ability to participate in the prosecution of this action if the trial is set regularly on the Court’s calendar. It is critical that Plaintiff is provided an early trial date, as it is possible that Plaintiff could die or become incapacitated before her case comes regularly for trial. (Haghighi Decl., ¶¶ 5-8.)
Plaintiff also cites to Fox v. Superior Court (2018) 21 Cal.App.5th 529 (Fox) for the argument that she only has to demonstrate that she is “very sick” for trial preference to be granted under Code of Civil Procedure section 36(a).
Fox states: “ 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.” [citation]… The issue under subdivision (a) is not whether an elderly litigant might die before trial or become so disabled that she might as well be absent when trial is called. 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.” (Italics original) (Fox, supra, 21 Cal.app.5th at 534.)
In opposition, Defendants contend that preference is not required because Plaintiff does not have any “serious illness” and is not “likely to experience a significant decline in mental status.” (Opposition, 5-6.)
Defendants argue that there is nothing about Plaintiff’s physical or mental status to suggest that her interest in this case will be prejudiced if preference is not granted. (Id.) Defendants submit the declaration of Khaled Anees, M.D. (Dr. Anees) in support of their opposition.
Dr. Anees attests: “I am a board-certified neurologist in the State of California and have been since September 2010. I am also licensed in Colorado, Michigan, New Jersey, Washington and Wisconsin... In preparation of my opinions regarding Ms. Sharifi, I have reviewed the following materials: Plaintiff’s complaint for damages; correspondence dated April 11, 2022 from Law Offices of Faud Haghighi, entitled Masoumeh Kabiri Sharifi’s Demand: Policy Limit, including all attached documents and medical records; Plaintiff’s responses to form interrogatories; Plaintiff’s responses to special interrogatories; Plaintiff’s responses to request for production of documents and documents produced; Plaintiff’s medical records from Hoag Memorial Hospital, American Multi-Specialty Medical Clinic, NeuroSpa Brain Rejuvenation Centers, Inc., United Medical Imaging, American Multi-Specialty Medical Clinic dba Orange County Pain Clinics and Irvine Physical Medicine and Rehabilitation; Radiology records from Hoag Memorial Hospital; Declaration of Ali Kachueian… I compared Ms. Sharifi’s head CT /MRI scans from 2012, 2016 and 2017 with the head CT performed on May 16, 2021 after her fall. The scans are substantially similar, showing findings that include white matter changes, atrophy or loss of brain volume, and ventricalomegaly (enlargement of the ventricles). Such changes are more likely chronic, age-related, degenerative changes and not indications of acute trauma or neurological injury.” (Anees Decl., ¶¶ 1, 4, 11.)
Anees also states: “Based upon my education, training and experience, and based upon the medical records and other documents that I have reviewed concerning Masoumeh Sharifi, I have formed the following opinions: Ms. Sharifi does not have any serious health condition that will likely result in her inability to attend or meaningfully participate in a civil trial in the next 12 months. There is no evidence that she has a life-threatening injury or illness. Ms. Sharifi did not sustain a significant brain injury in her fall on May 16, 2021. Her mental status is unlikely to significantly decline over the next twelve months.” (Anees Decl., ¶ 3.)
In reply, Plaintiff contends that Dr. Anees’ opinion is objectionable because Defendants were never provided the 5-16-21 head scan from the copy service, First Legal. Plaintiff submits a Declaration of Haghighi in Support of Reply.
Plaintiff’s reply also submits additional portions of Plaintiff’s 9-26-22 deposition for the argument that Plaintiff’s health has been significantly impaired. (See Exhibit 5 to Haghighi Declaration in Support of Reply.)
The court finds that Plaintiff meets both requirements of Code of Civil Procedure section 36(a).
First, it is undisputed that Plaintiff is age 82 and a party to this action. Thus, Plaintiff has a “substantial interest” in this action as a whole.
Second, Code of Civil Procedure section 36(a)(2) only requires a showing that “the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest.”
Further, pursuant to the Fox case, an attorney declaration is sufficient to make such a showing, and the party is not required to show that she may die or become disabled by the time of trial such that she may be absent from trial.
The Haghighi Declaration in support of motion demonstrates that Plaintiff was diagnosed with various neurological conditions following the incident at Defendants’ store on 5-16-21. The Haghighi Declaration also demonstrates that these neurological conditions and Plaintiff’s other existing medical conditions make it so that she needs extensive assistance for activities of daily living such as showering and eating, and that she suffers from memory issues and other cognitive deficits. This is sufficient to fulfill the requirements of Code of Civil Procedure section 36(a)(2).
Based on the foregoing, Plaintiff’s Motion for Preferential Trial Setting is GRANTED.
Trial is set for ______________ in Dept C33.
Plaintiff is to give notice.
2. Case Management Conference
Parties should be prepared to set a trial date within 120 days.
Future hearing dates
No future hearing dates