Judge: John J. Kralik, Case: 23BBCV02973, Date: 2024-02-23 Tentative Ruling

Case Number: 23BBCV02973    Hearing Date: February 23, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.   Allegations

Plaintiff Sara Salgado (“Plaintiff”) is alleged to be an elder under the Elder Abuse and Dependent Civil Protection Act.  Defendants Prime Healthcare Services – Sherman Oaks, LLC dba Sherman Oaks Hospital and Prime Healthcare Foundation, Inc. are referred to as “Hospital Defendants” in the complaint.  Defendants 13400 Sherman Way, LLC dba Valley Palms Care Center (“Valley Palms”) and its agents and employees are referred to as the “Facility Defendants.”  Plaintiff is alleged to have been a patient of Valley Palms from July 20, 2023 to August 14, 2023.  Defendant Unison Health Services, Inc. (“Unison”) is the home health agency that provided services to Plaintiff from August 17, 2023 to August 22, 2023 and Unison, its employees, and agents are referred to as “HHA Defendants” in the complaint.   

Plaintiff alleges that she was admitted to Sherman Oaks Hospital from July 13, 2023 to July 20, 2023 after a fall at home and bilateral femur and pelvic fracture.  Plaintiff alleges that she developed pressure ulcers located at her sacrum and left heel, and her left Achilles avoidably deteriorated.  Plaintiff alleges that during her admission with Valley Palms, she was denied medical care and suffered injuries, including new and avoidable pressure ulcers and avoidable deterioration of the pressure ulcers on her body and left heel.  Plaintiff also alleges that Unison provided wound care and home health care to Plaintiff from August 17, 2023 to August 22, 2023, but HHA Defendants failed to provide medical care and caused her to suffer new and avoidable pressure ulcers and avoidable deterioration. 

The complaint, filed December 14, 2023, alleges causes of action for: (1) elder abuse/neglect (Welf. & Inst. Code, § 15600 et seq.) all Hospital Defendants; (2) negligence/willful misconduct all Hospital Defendants; (3) elder abuse/neglect (Welf. & Inst. Code, § 15600 et seq.) all Facility Defendants; (4) negligence/willful misconduct all Facility Defendants; (5) elder abuse/neglect (Welf. & Inst. Code, § 15600 et seq.) all HHA Defendants; and (6) negligence/willful misconduct all HHA Defendants.

B.    Motion on Calendar  

A Case Management Conference is set for May 13, 2024.  No trial date has been set. 

         On January 12, 2024, Plaintiff filed a motion for trial preference CCP § 36(a). 

         On February 8, 2024, Defendants Prime Healthcare Services – Sherman Oaks, LLC dba Sherman Oaks Hospital and Prime Healthcare Foundation, Inc. (“Hospital Defendants”) filed an opposition brief.

         On February 8, 2024, Defendant 13400 Sherman Way, LLC dba Valley Palms Care Center (“Valley Palms”) filed an opposition brief. 

         On February 15, 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 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).)

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.

EVIDENTIARY OBJECTIONS

         With the opposition papers, Valley Palms submitted evidentiary objections to Plaintiff’s evidence in support of the motion.  The objections to paragraphs 4 and 5 to the declaration of Justin Vitug is overruled. 

DISCUSSION

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

Plaintiff is currently 79 years old (date of birth: May 24, 1944).  (Vitug Decl., ¶3, Ex. 1 [Passport].)  Further, the Court finds that Plaintiff has a substantial interest in the action as she claims she was injured by each of the Defendants for their abuse and neglect while a patient at the respective facilities.  

Plaintiff’s counsel, Justin Vitug, provides his declaration in support of the motion.  Mr. Vitug states that upon information and belief, based on Plaintiff’s medical records and communications with her son, Plaintiff’s prognosis is poor since falling in July 2023 and fracturing her femur, which studies associate with a high 1-year mortality in the elderly population.  (Vitug Decl., ¶4.)  He states that Plaintiff suffers from a host of other issues and age-related conditions, including a recent history of stage 3 or 4 bedsores, scoliosis, osteoporosis, atrial fibrillation, generalized muscle weakness, dysphasia, hypothyroidism, hyperlipidemia, hypertension, gastroesophageal reflux disease, and tachycardia.  (Id.)  He states that Plaintiff’s therapist recently advised her family that she would never walk again due to foot contractures.  (Id.)  Mr. Vitug also states that upon information and belief, Plaintiff remains immobile and dependent for all activities of daily living and requires 24/7 around-the-clock care.  (Id., ¶5.)  He states that her immobility and history of bedsores places her at a high risk for serious infections and sepsis.  (Id., ¶5.)  He states that all essential parties have been served.  (Id., ¶6, Ex. 2.) 

In opposition, Hospital Defendants acknowledge that Plaintiff is over 70 years of age and that she has a substantial interest in the action, but argue that she has failed to show that her interests would be prejudiced without a trial preference.  Similarly, Valley Palms argues that Plaintiff has not shown that her health is such that her death or incapacity is imminent and that Mr. Vitgu’s declaration only confirms that Plaintiff has been in the same condition for the past several months. 

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 Mr. Vitug’s declaration is primarily made on information and belief, which is allowed under the code, the declaration fails to show that a preference is necessary to prevent prejudicing Plaintiff’s interest in the litigation.  At most, he lists Plaintiff’s medical conditions and states that she may never walk again, but he has not shown how her interests would be prejudiced if a preference were not granted. 

At this time, the showing made by Plaintiff does not satisfy the burden under CCP § 36.  As such, the motion for preference is denied.

CONCLUSION AND ORDER

The motion for trial preference is denied without prejudice.