Judge: John J. Kralik, Case: 23BBCV01770, Date: 2024-01-26 Tentative Ruling

Case Number: 23BBCV01770    Hearing Date: January 26, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Haykgohi Zargarian (“Plaintiff”) alleges that she was a patron of Walmart Supercenter in Burbank on February 11, 2023.  Plaintiff alleges that she stepped on grapes that were on the floor in or near the self-checkout area, slipped, and fell, causing severe injuries and damages to Plaintiff.  Plaintiff alleges that Defendants Walmart Inc. (“Walmart”) and Defendant Hal Halmon (“Halmon”) carelessly and negligently owned, controlled, maintained, and inspected the premises so as to allow the area where the subject incident occurred to become dangerous and unsafe for patrons to use. 

The complaint, filed August 2, 2023, alleges a single cause of action for negligence.    

B.     Motion on Calendar

On December 21, 2023, Plaintiff filed a motion for trial preference pursuant to CCP § 36.  

            On January 12, 2024, Walmart filed an opposition brief.

            On January 19, 2024, Plaintiff filed a reply brief.

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 his 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).)

Pursuant to CCP § 36(e), in its discretion, the court may 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 preference. 

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.

DISCUSSION

Plaintiff moves for trial preference based on her age and current medical condition.  Plaintiff seeks a trial preference within 120 days of this hearing date. 

In support of the motion, Plaintiff provides the declaration of her counsel Sedrak Yenikomshuyan and physician Glenna Tolbert, M.D. 

Dr. Tolbert states that she has reviewed Plaintiff’s medical records.  (Tolbert Decl., ¶4.)  She states that according to her medical records, on February 12, 2023, Plaintiff only recently underwent a serious medical procedure to treat her hip fracture.  (Id., ¶5.)  She states that upon further review of the records, it became apparent that in addition to her advanced age, Plaintiff has been diagnosed with “major depressive disorder, hard of hearing, struggles with cardiovascular issues such as hyperlipidermia, and needs assistance in all activities, which includes, the use of a walker for weakness and limited range of motion.”  (Id., ¶5.) 

Mr. Yenikomshuyan states that Plaintiff is 82 years old (date of birth: December 6, 1941).  (Yenikomshuyan Decl., ¶3; Ex. 1 [Medical Record indicating date of birth].)  He states that based on his review of the medical records and communications with Dr. Tolbert, he is informed and believes that if a trial date is not set within 120 days, Plaintiff’s availability for trial will be severely prejudiced.  (Id., ¶4.)  He states that he has been informed that Plaintiff’s physical condition has deteriorated in the past 6 months, she tires easily and quickly, and her hip and leg pain make it difficult for her to move and focus for extended periods of time.  (Id.)  Counsel states that the case is a straightforward case with a single cause of action, no significant amendments to the pleadings are anticipated before trial, there are no complex issues, and the parties have been engaging in discovery, subpoena practice, and depositions such that discovery is anticipated to be completed by April 2024 and expert discovery by May 2024.  (Id., ¶¶5-8.)  Counsel anticipates the jury trial to take approximately 7-10 days.  (Id., ¶9.)  Mr. Yenikomshuyan states that in light of Plaintiff’s age, medical diagnosis and prognoses, a preferential trial date is necessary to prevent prejudicing Plaintiff’s interests and he is concerned that if a trial date is not set within 120 days, Plaintiff’s medical issues will severely jeopardize her ability to participate in the litigation.  (Id., ¶10.) 

Section 36(a) requires that: (1) Plaintiff be over the age of 70; (2) Plaintiff have a substantial interest in the action as a whole; and (3) Plaintiff’s health is such that a preference is necessary to prevent prejudicing her interest in the litigation.  First, Plaintiff has established that she is over the age of 70.  Second, since Plaintiff was involved in the slip and fall accident at issue in this action, she can establish that she has a substantial interest in the action as a whole. 

The evidence supporting the third factor regarding Plaintiff’s health is sparse.  Plaintiff provides the declarations of her counsel and a physician.  It is unclear what relationship Dr. Tolbet has with Plaintiff.  In her declaration, Dr. Tolbert states that she reviewed Plaintiff’s records, but there are no statements that she is Plaintiff’s treating physician.  According to the medical records attached to Mr. Yenikomshuyan’s declaration, the only doctors identified are Surgeon Shahan Yacoubian V., MD for the hip fracture surgery (Megan Johnson, MD for physician’s notes provider) (Yenikomshuyan Decl., Ex. 1) and a medical record by Central Home Health Agency (no doctors identified) (id, Ex. 2).  Dr. Tolbert’s declaration does not show that Plaintiff’s health is such that a preference is necessary to prevent prejudicing her interest in the case.  Mr. Yenikomshuyan also provides his declaration, wherein he states that Plaintiff’s condition has deteriorated, she tires quickly, and she has difficulty moving and focusing.  Other than a conclusory statement that he is concerned that Plaintiff’s interests will be prejudiced if trial is not sets within 120 days, counsel has not shown that a medical diagnosis or prognosis of Plaintiff is such that a preference is necessary to prevent prejudicing her interest in the litigation. 

            As Plaintiff has not made this requisite showing through her moving papers, the motion for a trial preference is denied. 

CONCLUSION AND ORDER 

Plaintiff’s motion for trial preference is denied without prejudice.

The Court notes that this action will be transferred to Department V of the Alhambra Courthouse on February 5, 2024.  Thus, Plaintiff may re-file the motion in the Alhambra Courthouse when they develop more compelling evidence to support their motion. 

The Case Management Conference is continued to March 12, 2024, at 8:30 a.m. in Department V.

Plaintiff shall provide notice of this order.

DATED: January 26, 2024                                         ___________________________

                                                                              John Kralik

                                                                              Judge of the Superior Court