Judge: John J. Kralik, Case: 22BBCV00826, Date: 2024-10-04 Tentative Ruling

Case Number: 22BBCV00826    Hearing Date: October 4, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.         Allegations

Plaintiff Suzanne Bank (“Plaintiff”) alleges that on October 22, 2020, she was shopping at a Whole Foods Market located in Burbank.  Plaintiff alleges that Defendant Mrs. Gooch’s Natural Food Markets, Inc. dba Whole Foods Market (“Whole Foods”) was negligent and failed to exercise reasonable care in keeping the premises reasonably safe or failed to warn of dangers that were known or knowable.  Plaintiff alleges that Whole Foods failed to keep the ramp escalator reasonably safe and failed to properly hire or supervise a third-party to install and maintain the escalator ramp.  Plaintiff alleges that she was injured from a fall when the escalator malfunctioned and caused a shopping cart to get stuck.

The complaint, filed October 21, 2022, alleges causes of action for: (1) general negligence; and (2) premises liability.

On January 12, 2023, Plaintiff named Schindler Elevator Corporation (“Schindler”) as Doe 1. 

B.    Cross-Complaint

On February 6, 2024, Cross-Complainant P&H Casters Company, Inc. (“P&H Casters”) filed a cross-complaint against Moes 1-100 for: (1) indemnification; (2) apportionment of fault; (3) declaratory relief; and (4) express indemnity. 

On April 26, 2024, Defendant/Cross-Complainant Schindler filed a cross-complaint against Roes 1-25 for: (1) equitable indemnity; (2) declaratory relief; and (3) contribution.  On September 15, 2023, Schindler named P&H Casters as Roe 1; Gatekeeper Systems, LLC as Roe 2; and Glide Rite Corporation as Roe 3.  On December 15, 2023, the default of P&H Casters as Roe 1 was entered. 

C.    Relevant Background and Motion on Calendar  

On June 24, 2024, the Court entered the Joint Stipulation to Continue Trial and All Related Dates and Order re: Stipulation to Continue Trial and All Related Dates.  Due to the extended hospital stay of Plaintiff’s counsel Stephen Bernard, the addition of new parties to the litigation, the need for extensive discovery, the need to schedule Plaintiff’s deposition and independent medical examination, and the desire of the parties to seek private mediation, Whole Foods, Plaintiff, Schindler, Gatekeeper, P&H Casters, and Glide Rite agreed to continue the Final Status Conference, Jury Trial, and all trial-related deadlines.  The Final Status Conference is currently set for July 10, 2025.  The Jury Trial is set for July 21, 2025. 

            On August 9, 2024, Plaintiff filed a motion for trial preference pursuant to CCP § 36. 

            On August 29, 2024, Cross-Defendant Gatekeeper Systems, Inc. (erroneously sued as Gatekeeper Systems, LLC) filed an opposition brief.

            On August 30, 2024, Whole Foods filed an opposition brief. 

On August 30, 2024, Glide Rite filed a joinder to Whole Foods’ opposition. 

On August 30, 2024, Schindler filed an opposition brief.

            On September 6, 2024, Plaintiff filed a reply brief.

            On September 9, 2024, Whole Foods filed evidentiary objections.

LEGAL STANDARD

According to CCP § 36(a), a party to a civil action who is over the age of 70 must be given preference if the party has a substantial interest in the action as a whole and the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.  To make the findings required by CCP § 36(a), evidence must be provided with the motion for preference establishing Plaintiff’s age and the relevant conditions of her health warranting a preference.  Pursuant to CCP § 36.5, an attorney affidavit offered in support of a motion for preference may be based on information and belief as to the medical diagnosis and prognosis of a party.  If a motion for preference based on a party’s age is granted, the matter must be set for trial not more than 120 days from the date the motion is granted.  (CCP § 36(f).)

Finally, CCP § 36(c)(1) requires that all essential parties be served with process or have appeared in the action in order to grant a motion for preference.

EVIDENTIARY OBJECTIONS

            Whole Foods submitted evidentiary objections to the declaration of Maksim Merzel in support of the reply brief.   The Court overrules the objections to paragraphs 3-6. 

DISCUSSION

Plaintiff moves for trial preference so that trial will be set within 120 days from the hearing date. 

Plaintiff is currently 84 years old (date of birth: June 16, 1940).  (Merzel Decl., ¶3.)  Further, the Court finds that Plaintiff has a substantial interest in the action as she claims she was injured by the subject incident that occurred at Whole Foods’ store on October 22, 2020.  Thus, the remaining issue is whether the health of Plaintiff is such that a preference is necessary to prevent prejudicing her interest in the litigation

Plaintiff’s counsel, Maksim Merzel, provides his declaration in support of the motion.  Counsel states that as a result of the subject incident, Plaintiff has suffered significant neurological, orthopedic, and spinal injuries, including potential traumatic brain injury (“TBI”), numerous disc herniations, and other notable injuries throughout her body.  (Merzel Decl., ¶4.)  Counsel states that due to these injuries, Plaintiff has had trouble with basic ambulation, has difficulties caring for herself, and constantly seeks medical care for her broad and intensive injuries.  (Id., ¶5.)  Counsel states that in the past months, Plaintiff’s condition has continued to deteriorate such that she will never be able to return to her pre-injury state.  (Id., ¶6.)  He states that Plaintiff’s functional status is extremely poor, she has generalized weakness and frailty, and she is generally unable to take care of all her activities of daily living.  (Id.)  Counsel states that due to her severe injuries and, upon information and belief, Plaintiff will be at a higher risk of cardiovascular complications and “general wasting,” all of which place her at a higher risk for death.  (Id.)  Counsel believes that based on Plaintiff’s records and information received from communications with Plaintiff, her health is such that a preference is necessary to avoid prejudicing her interests in the litigation.  (Id., ¶7.) 

In opposition, Gatekeeper argues that a preferential trial date would deprive it of a reasonable opportunity for discovery and pretrial preparation in violation of due process of the law.  Gatekeeper argues that Plaintiff has made no effort to prosecute the action aside from basic written discovery, only 2 hours of Plaintiff’s deposition have been taken, and numerous delays and extensions have been granted to Plaintiff for her deposition based on Plaintiff’s counsel’s health issues.  Gatekeeper argues that the parties stipulated (on June 24, 2024) to continue the November 12, 2024 trial date to July 21, 2025 and that the parties agreed to mediate the case with Peter Searle, but the earliest date of availability for Mr. Searle is in February 2025.  Gatekeeper also argues that Plaintiff’s orthopedic and neurological examinations are scheduled for October 29, 2024 with Dr. Michael Weinstein and November 14, 2024 with Dr. Edwin Amos.  Gatekeeper argues that Plaintiff has testified at her August 19, 2024 deposition that no medical professional informed her that she has a limited time left in her life or that she has any terminal conditions.  (Gatekeeper’s Opp., Ex. A [Pl.’s Depo. at p.42].)  Schindler makes similar arguments in its opposition papers that Plaintiff failed to demonstrate her need for a preferential trial date and that its due process rights will be impaired if a preference is granted. 

In Whole Foods’ opposition, Whole Foods argues that Plaintiff recently testified at her August 19, 2024 deposition (taken after Plaintiff filed the motion) that she does not reside with anyone, washes herself without assistance, does her own cooking, is able to dress and groom herself, does not receive disability benefits, continues to drive herself on a daily basis, and does Pilates 3 times a week (though she took a 4-month break after the subject incident).  (Whole Foods’ Opp. at Ex. B [Pl.’s Depo. at pp. 19, 27-28, 32, 33-34, 38].)   Plaintiff also testified that she worked/consulted in interior design in April 2024 and would be willing to do more work if available.  (Pl.’s Depo at pp.21, 25.)  She also testified that she was not aware of any heart conditions and that no medical professional has told her that she has a limited amount of time left in her life.  (Id. at pp. 25, 41-42.) 

In reply, Plaintiff argues that her traumatic brain injury has affected her perception of her own abilities, which affects her memory, concentration, cognition, and ability to ambulate as she used to.  With the reply brief, Plaintiff provides medical records.  (Reply at Ex. A.)  According to a December 22, 2020 letter, Dr. Isaac Regev diagnosed Plaintiff with cerebral concussion syndrome/TBI and in an April 6, 2021 letter, he noted that she had symptoms of TBI.  (Id.)  

When considering a motion for trial preference under section 36(a), a preference “shall” be granted where the Court makes a finding that the party is over 70 years old, has a substantial interest in the action as a whole, and her health is such that a preference is necessary to prevent prejudicing her interest in the litigation.  The standard does not include weighing the interests or inconvenience of other litigants—including based on the parties’ agreed-to stipulation, the proposed dates for discovery, and the possible future mediation date. 

As stated in section 36.5, an attorney affidavit may be made on information and belief.  (See Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534 [“The standard under subdivision (a), unlike under subdivision (d), which is more specific and more rigorous, includes no requirement of a doctor's declaration. To the contrary, 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.’”].)  While Plaintiff’s counsel’s declaration is made on information and belief regarding Plaintiff’s current health condition, this is allowed under the code.  Counsel’s declaration states Plaintiff’s age and her interest in the subject litigation. 

However, Mr. Merzel’s declaration does not show that a preference is necessary to prevent prejudicing Plaintiff’s interest in the litigation.  Counsel states that due to Plaintiff’s physical injuries, she is at a higher risk of cardiovascular complications and general wasting, which can result in her death.  There is no explanation how Plaintiff’s neurological, orthopedic, and spinal injuries, including potential TBI, can result in a higher risk of cardiovascular complications, or whether Plaintiff previously suffered from cardiovascular complications before the subject incident that have since been exacerbated.  (Medical records are provided for the first time with the reply brief, but these do not address cardiovascular complications.  Further, the medical records and doctor’s letter regarding TBI are from 2020 and 2021, which are from 3 to 4 years ago; current doctor’s notes/letters are not provided.)  As shown through Plaintiff’s deposition transcript (attached with Whole Foods’ opposition papers), Plaintiff was not informed by any medical professional that she has any heart conditions or has a limited life span.  While counsel’s declaration may be based on information and belief, the prognosis of her impending death due to possible risks of cardiovascular complications (when no prior complications were noted before) or “general wasting” is tenuous at best.  Thus, Plaintiff has not shown that her health is such that a preference is necessary to prevent prejudicing her interest in the litigation. 

Finally, Plaintiff argues that she is over the age of 70 (the statutory minimum for section 36) and that she has exceeded the average life expectancy in the United States.  These facts alone will not be a ground to grant the motion. 

For these reasons, the motion for trial preference is denied.   

CONCLUSION AND ORDER

The motion for trial preference is denied. 

Plaintiff is ordered to give notice of this order.