Department 30, Spring Street Courthouse

July 28, 2022

20STCV31577

Motion for Trial Preference filed by Plaintiff Aram Keshishi 

The motion is denied.

The Court asks the parties to work together to get discovery completed so that the October 25, 2022 trial date holds. 

Moving party is ordered to provide notice.

On August 19, 2020, Plaintiff Aram Keshishi filed his complaint alleging causes of action for motor vehicle negligence against Stevie L. Medina, Rudy Medina, and Does 1-20. Plaintiff alleges Defendant Rudy Medina negligently entered the median lane at high speed and collided with Plaintiff as he was waiting to park his vehicle in his driveway. 

On July 5, 2022, Plaintiff filed a motion for an order granting preference in trial setting pursuant to Code Civ. Pro. section 36, subd. (a).

Trial is currently set for October 25, 2022.

Plaintiff moves this Court for trial preference pursuant to Code of Civil Procedure section 36, subdivision (a), seeking an Order commencing trial in no more than one-hundred and twenty (120) days. 

Plaintiff argues he is entitled to mandatory trial preference as he has proffered evidence satisfying each element articulated within Code of Civil Procedure section 36, subdivision (a).  First, Plaintiff’s driver’s license shows he was born on June 24, 1952 and he is thus over 70 years old.  Second, Plaintiff contends he has a substantial interest in this litigation as a whole because he is the Plaintiff in this action seeking damages for Defendants’ alleged negligence.  Lastly, Plaintiff contends his health is such that preference is necessary to prevent prejudicing his interest in the litigation.  Plaintiff argues that he suffers from aortic stenosis, a BMI of less than 20, cardiomyopathy, transcatheter aortic valve replacements, and thrombocytopenia.   

In support of Plaintiff’s Motion, Plaintiff submits his driver’s license, the declaration of Plaintiff’s counsel, and medical records from Dr. Joseph Ikjae Lee.

Defendants argue that Plaintiff’s motion should not be granted because setting a trial date any sooner than October 25, 2022 will not give Defendants enough time to complete discovery, file dispositive motions, and prepare for trial which violates Defendants’ right to due process. Defendants argue that they require additional time to acquire more medical records, complete expert discovery, and depose fact witnesses. Defendants request that the trial date be set no sooner than 120 days from the date the motion is granted.

Defendants also request that Plaintiff provide supplemental and complete verified responses to Defendants’ discovery within 10 days from the hearing of the motion; that Plaintiff’s independent examination be completed by September 1, 2022; that expert designations be exchanged 30 days before trial; and that all expert and other discovery remain open until trial assignment.

Plaintiff argues that his request does not prejudice Defendants because he does not request a trial date sooner than October 25, 2022. Plaintiff requests that trial commence no later than 120 days from the date this motion is granted and that trial not be continued past November 24, 2022.

"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) [t]he party has a substantial interest in the action as a whole[; and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.”  (Code Civ. Proc., § 36, subdivision (a).) 

A motion made under Code of Civil Procedure section 36, 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.]”  (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534, citing Code Civ. Proc., § 36.5 [“[a]n affidavit 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”].)

 

If the court makes the requisite finding of fact on a motion for preference under Code of Civil Procedure section 36, subdivision (a), it has no discretion to deny the motion due to the use of the word “shall” in the statute.  (See Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224-25; see also Rice v. Superior Court (1982) 136 Cal.App.3d 81, 89-94.)  “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.”  (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.)  “The trial court has no power to balance the differing interests of opposing litigants in applying the provision.”  (Ibid.)

Here, Plaintiff provides evidence that he is over the age of 70. (Motion, Exhibit 1) Plaintiff’s counsel’s declaration explains that Plaintiff has a history of severe aortic stenosis, body mass index less than 20, cardiomyopathy, heart palpitations, chronic systolic heart failure, transcatheter aortic valve replacements, and thrombocytopenia. (Ekmekchyan Decl., ¶3.) However, the attached medical report shows that Plaintiff’s heart palpitations and cardiomyopathy have resolved. (Motion, Exhibit 2.) Although Plaintiff underwent surgery in September 2021 to implant transcatheter aortic valve replacements for critical aortic stenosis, the report shows he has done well since then and does not report shortness of breath during physical activity. (Id.) There is also no evidence of chronic systolic heart failure. (Id.) Based on the information provided, Plaintiff appears to have no ongoing health problems that would prejudice his interests during litigation. Therefore, Plaintiff has not met his burden regarding his motion for trial preference.