Judge Jill Feeney, Case Number: 23STCV12635, Date: 2024-01-18 Tentative Ruling

This is an action for violations of the labor code and violations of the FEHA. Plaintiff alleges that he was employed as security guard and commander with Defendant LA Security & Patrol, Inc., a private security company in July 2019. When Defendant’s contract with another business ended, Plaintiff endured a two-month absence from work before he was replaced by another employee he had trained. Plaintiff was reassigned with decreased pay. Despite working 12-15 hours a day on average, he was only paid at his regular rate, not his overtime rate. Plaintiff was unable to take his required meal or rest breaks because there were no guards available to relieve him. In July 2021, Plaintiff was hospitalized due to COVID-19. Defendants did not provide any sick pay or sick days. In March 2022, Plaintiff suffered a stroke and heart attack. Defendants again failed to provide sick pay. In October 2022, Plaintiff was diagnosed with lung cancer and required surgery. In February 2023, Plaintiff reported for work, but was not on the schedule. Plaintiff met with Defendant Avetisyan and inquired why he was not scheduled to work. Avetisyan explained he did not believe Plaintiff was able to do the job despite Plaintiff’s return from leave to due to his medical condition. On March 22, 2023, Plaintiff was terminated.

Plaintiff moves for trial preference on the grounds that a trial preference serves the interests of justice because Plaintiff should be allowed to prosecute his claims in a timely manner before another complication arises. Plaintiff argues that his advanced age, history of severe medical conditions, medical deterioration, and developing conditions show that he is at risk of passing away or suffering a life-altering medical complication before trial is set in this matter.

A court may, in its discretion, grant a 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. (Code Civ. Proc., section 36(d).)

Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting the preference. (Code Civ. Proc., section 36(e).)

The decision to grant or deny a preferential trial setting under Code Civ. Proc., section 36(e) rests at all times in the sound discretion of the trial court in light of the totality of the circumstances. (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 344.)

Upon granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party's attorney, or upon a showing of good cause stated in the record. (Code Civ. Proc., section 36(f).)

Here, Plaintiff is not over the age of 70 and therefore does not qualify for a trial preference under Code Civ. Proc., section 36(a). Plaintiff relies on Code Civ. Proc., section 36(d) and (e). Plaintiff provides the declaration of Dr. Nader Kamangar, who testifies that he is one of Plaintiff’s treating physicians. (Kamangar Decl., ¶1.) From 2019 to the present, Plaintiff has been diagnosed with bladder cancer, been hospitalized for complications from COVID-19, suffered a stroke and heart attack, been diagnosed with lung cancer, required the removal of part of his lung and one rib, and been hospitalized with hemoptysis in his lungs. (Id., ¶¶4-9.) Plaintiff was hospitalized for hemoptysis as recently as September 2023 and was last scheduled for a clinic visit in November 2023. (Id., ¶¶9-10.) Plaintiff has a prognosis of 80% 5-year mortality and a diagnosis of Stage IIIA non-small cell lung cancer. (Id., ¶10.) Dr. Kamangar opines that given Plaintiff’s advanced age, strenuous medical history, and medical condition, there is a significant risk that Plaintiff’s condition will deteriorate during the pendency of this action. (Id., ¶11.)

Plaintiff’s evidence consists of the declaration of Plaintiff’s treating physician and his attorney. Although Dr. Kamangar opines that Plaintiff’s medical condition is likely to continue to deteriorate and that there is an 80% five-year mortality rate for individuals with similar conditions, he does not opine that Plaintiff is not likely to survive beyond six months or that his health would necessitate a trial prior to December. There is no evidence that Plaintiff is not likely to survive beyond six months as required under section 36(d).

Additionally, it appears that Plaintiff’s last hospitalization was in September 2023 and he visited a clinic in November 2023. It does not appear that Plaintiff’s health has deteriorated further since September 2023. Although Plaintiff has an eventful medical history, with diagnoses of cancer and significant hospitalization, the evidence available now is insufficient to show that the interests of justice would be served by a trial preference.