Judge Jill Feeney, Case 21STCV12020 2022-12-28 Tentative Ruling

This is an action for negligence and premises liability arising from a trip and fall incident which took place in June 2020. Plaintiff Thomas Hyland filed his Complaint against Defendants 99 Cents Only Store, Roberto Brutocao as Co-Trustee of the Brutocao Grandchildren Trust, and Nickel and Company LLC on March 30, 2021.

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 his motion for trial preference should be granted because he is over 70 years old, has a substantial interest in the action, and his health is such that the preference is necessary to prevent prejudice to Plaintiff’s interests in this litigation.

Defendant 99 Cents argues that Plaintiff failed to show that his health necessitates granting the motion. Additionally, 99 Cents’ due process rights would be violated if the Court grants Plaintiff’s motion because it would be unable to have a reasonable opportunity to conduct discovery and prepare for trial.

Plaintiff argues that he is not required to present supporting expert testimony to confirm his health and that Defendants’ due process concerns are not considered in a preference analysis.

"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”].) The affidavit may also consist entirely of hearsay and conclusions. (Id.)

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.)

The courts have not decided on the due process implications of Code Civ. Proc., section 36. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 227.) Although the Swaithes court briefly acknowledged that trial preference may operate to truncate the discovery rights of other parties, the provisions of section 36 remain mandatory. (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1086.)

The parties also dispute whether Plaintiff met his burden of proof of showing his health is such that a preference is necessary to prevent prejudicing his interest in the litigation.

Plaintiff’s counsel testifies that Plaintiff has been living in an assisted living facility due to limitations on his mobility after the subject fall. (Popka Decl., ¶5.) Plaintiff now requires a walker to assist with his mobility and is unable to participate in hobbies the way he could before the incident. (Id., ¶6.) Plaintiff suffers from hypertension and heart disease. (Id., ¶7.) He underwent aortic valve replacement and coronary bypass surgery in May 2017. (Id.) Plaintiff also had state IV prostate cancer which is currently in remission. (Id.)

Plaintiff also submits an independent medical examination dated June 13, 2022 in support of his motion. (Motion, Exh. 1.) The report focuses primarily on Plaintiff’s hip injury. The report states that Plaintiff suffered a right hip fracture after the subject fall and now requires the help of a walker for mobility. Plaintiff continues to report right hip pain that worsens with walking and that he does not require pain medication. The examiner noted Plaintiff’s previous medical records related to his heart surgery, prostate cancer, and declining cognitive function. The examiner also notes that Plaintiff “would have required the use of assistive devices even if the fall had not occurred due to his advanced age and declining physical condition.”

Plaintiff’s advanced age and poor physical condition meet the prejudice standard set forth in Code Civ. Proc., section 36. Plaintiff’s evidence shows that he has previously undergone heart surgery and treatment for prostate cancer. Plaintiff lives in assisted living and is experiencing cognitive and physical decline. Additionally, his mobility is declining such that he would have required the assistance of a walker even without the subject fall. Although Plaintiff’s evidence establishing his advanced age and poor physical and mental condition are sufficient to satisfy the prejudice standard of Code Civ. Proc., section 36.

Defendants argue that Plaintiff fails to meet the prejudice standard because he has not shown that any ailments are life threatening. However, section 36 only requires that a party’s health be such that a trial preference is necessary to prevent prejudice to the party’s interests in litigation. Here, Plaintiff is of an extremely advanced age at 93 years old, is experiencing cognitive decline, and is already in poor physical condition which is deteriorating. The evidence shows that Plaintiff has good reason for concern that his poor physical and mental condition will prejudice his interests in litigation the longer trial is delayed.

Defendants argue that their due process rights would be impacted if trial preference is granted because they would be unable to complete discovery and properly assess the incident in just 120 days. Defendants rely on Roe v. Super. Ct. to support their argument. However, the footnote in Roe which discusses this issue also states that no court has decided on the due process implications of Code Civ. Proc., section 36. The issue was ultimately not argued in Roe. Thus, trial preference under section 36 remains mandatory if a party meets the elements of section 36(a).

The Court further notes that Defendants do not provide any specific evidence in support of their contention that they have insufficient time to prepare for trial. Here, the complaint was filed on March 30, 2021. Defendant 99 Cent Only Stores filed its answer on July 12, 2021. On July 6, 2022, Defendant 99 Cent Only Stores filed an ex parte for leave to file a cross-complaint against UniFirst, which was granted. That application indicates that Defendant 99 Cent Only Stores knew that as of March 2022 that the mat provided to Defendant by UniFirst was the mat that Plaintiff alleges he tripped on. On August 18, 2022, the parties requested a trial continuance to January 2023. Due to the Court’s schedule, trial was set for June 23, 2023. Based on this record, there is no indication that Defendants cannot be ready for trial in April.

Defendants also argue that Plaintiff relies exclusively on a declaration from counsel which offers no foundation, support, or indication that counsel consulted with a medical professional before making the declaration. However, section 36 does not require that a party provide support from a medical professional or proof that one was consulted before making the motion. Moreover, the accompanying medical examination completed by a physician reflects the same ailments that counsel testified to. Defendants’ argument is without merit and Plaintiff’s counsel’s declaration is sufficient evidence of Plaintiff’s health.