Judge Jill Feeney, Case 22STCV15121 2023-03-21 Tentative Ruling

Judge: Jill Feeney, Case: 22STCV15121, Date: 2023-03-21 Tentative Ruling

Case Number: 22STCV15121 Hearing Date: March 21, 2023 Dept: 30

Department 30, Spring Street Courthouse

March 21, 2023

22STCV15121

Motion for Trial Preference filed by Plaintiff Jean Soon Choi.

DECISION

The motion is granted.

The FSC and trial dates are advanced and vacated.

Trial must be set for 7/19/2023 or before.

The Court sets trial for July 10, 2023 at 8:30 a.m.

The FSC is set for June 26, 2023 at 10:00 a.m.

Motion cutoff date, discovery cutoff date, expert exchange date and all other dates are to comport with a trial date of July 10, 2023.

Moving party to provide notice and to file proof of such notice within five court days after the date of this order.

To understand the Procedures in the
Personal Injury (PI) Courts, Counsel are directed to carefully review the Los
Angeles Superior Court's " Eighth
Amended Standing Order for Procedures in the Personal Injury Hub Courts
(Effective October 10, 2022)” available on the Court's website: [www.lacourt.org PI Courts
link)(Eighth Amended Standing Order Re: Personal Injury Procedures – Central
District].

(NOTEL: Any Party intending to proceed by Jury Trial must post jury fees forthwith. )

Background

This is an action for negligence arising from a vehicle-pedestrian collision which took place in March 2022. Plaintiff Jean Soon Choi filed her Complaint against Defendants Ji Eun Choi and Tae Hwan Kim on May 6, 2022.

Plaintiff filed the instant motion for trial preference on February 23, 2023.

Trial is currently set for November 3, 2023.

Summary

Moving Arguments

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 that the motion for trial preference should be granted because she is 83 years old and is in poor physical health. She also suffers from delirium that severely affects her short-term memory and is likely to get worse.

Opposing Arguments

Defendants argue the motion should be denied because Plaintiff provides no clear and convincing medical documentation that she suffers from an illness or condition raising substantial medical doubt of survival beyond six months. Defendants also argue that relief is not mandatory and the Court has discretion to deny the motion.

Reply Arguments

Plaintiff reiterates arguments from her motion.

Defendants’ Further Reply

Defendants reiterate arguments from their opposition.

Legal Standard

“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.)

Discussion

Plaintiff seeks a court order commencing trial in no more than 120 days.

Plaintiff provides her driver’s license as evidence of her age. The license shows that she is 83 years of age. Plaintiff clearly has a substantial interest in the action.

Defendants dispute whether Plaintiff met their burden of proof of showing their health is such that a preference is necessary to prevent prejudicing their interest in the litigation.

Plaintiff’s counsel testifies that Plaintiff sustained severe injuries after the subject collision that are debilitating and will require future medical care. (Contreras Decl., ¶2.) Plaintiff suffers from diabetes and delirium, which is worsening. (Id., ¶7.) Plaintiff also includes her medical records from California Hospital Medical Center, which states that she showed mild cognitive impairment with short-term memory loss in April 2022. (Motion, pdf p. 28.) Plaintiff’s moving papers state that her short term memory has deteriorated to the point that she cannot remember when she last ate or when she last showered, even if it was within the last few hours. (Motion, p. 3.) However, none of this information is included in Plaintiff’s Counsel’s declaration and thus will not be considered.

Plaintiff’s poor physical condition meet the prejudice standard set forth in Code Civ. Proc., section 36. Plaintiff’s evidence shows that she suffered from delirium immediately after the accident and counsel’s declaration states the delirium is worsening. The evidence of delirium coupled with Plaintiff’s other medical issues is sufficient to meet the prejudice standard of Code Civ. Proc., section 36.

Defendants argue that Plaintiff failed to provide any medical documentation that states Plaintiff’s poor health raises a considerable doubt of Plaintiff surviving beyond six months. However, Defendants incorrectly cite Code Civ. Proc., section 36, subd. (d), which states a Court may in its discretion grant relief to parties who do not fit the criteria stated in subdivisions (a) and (b). Here, Plaintiff is over the age of 70 and must only show that her health is such that a preference is necessary to prevent prejudicing her interest in the litigation under Code Civ. Proc., section 36, subd. (a). Moreover, section 36 does not require that a party provide support from a medical professional or proof that one was consulted before making the motion. Additionally, Plaintiff submitted authenticated medical records confirming that she suffered from delirium following the accident. Defendants’ argument is without merit and Plaintiff’s counsel’s declaration is sufficient evidence of Plaintiff’s health. Having met the requirements of Code Civ. Proc., section 36, subd. (a), a trial preference is mandatory.