Superior Court of California

County of Los Angeles

North Central District

Department B

mariam avanessian,

Plaintiff,

alameda care center, et al.,

Defendants.

Case No.: 24BBCV00122

Hearing Date: August 16, 2024

[TENTATIVE] order RE:

motion for trial preference

BACKGROUND

A. Allegations

Plaintiff Mariam Avanessian (“Plaintiff”) alleges that she was born on July 3, 1952, such that she is 71 years old and an “elder” pursuant to the Welfare & Institutions Code. Plaintiff alleges that Defendants Alameda Care Center, Artesia Healthcare, Inc. dba Alameda Care Center, and Longwood Management, LLC were the owners, operators, and managers of Alameda Care Center and were acting as “care custodians” during Plaintiff’s admission to Alameda Care Center. Plaintiff alleges that she was totally dependent upon Defendants for food, shelter, medical treatment, physical hygiene, and assistance with all activities of daily living, but Defendants failed to operate and provide services in compliance with federal and state regulations, failed to protect her from health hazards, neglected and abused her, and failed to provide for her physical and mental health needs.

Plaintiff alleges that on April 27, 2022, her son Allen received a call from the nursing staff to inform him that Plaintiff had fallen during the night, injuring her right leg. Plaintiff alleges that Alameda Care Center took an x-ray and diagnosed her with a fracture of an “unspecified part of neck of left femur” (Compl., ¶22) and that she was prevented from receiving necessary, timely medical care as she was not taken to Glendale Adventist Hospital until April 28, 2022. On April 29, 2022, Plaintiff underwent a partial hip replacement surgery to repair the fracture and was discharged on May 9, 2022 and readmitted to Alameda Care Center. Although Defendants knew of Plaintiff’s condition and that she was a fall risk, Plaintiff alleges that she fell and complained of pain on April 3, 2023, was again found on the floor of her bed on April 8, 2023, fell again on June 15, 2023, was found to have scabies and rashes all over her body on October 12, 2023, fell again on November 11, 2023 while unattended on a walk, and fell again on November 28, 2023 while on a walk.

The complaint, filed on January 16, 2024, alleges causes of action for: (1) elder abuse (Welfare & Institutions Code, § 15600 et seq.); (2) negligence; (3) violation of Health & Safety Code, § 1430(b); and (4) willful misconduct.

B. Relevant Background

On February 29, 2024, Defendants Artesia Healthcare, Inc. dba Alameda Care Center and Longwood Management, LLC filed a motion to compel arbitration. On March 28, 2024, Plaintiff filed a motion for trial preference pursuant to CCP § 36(a) and (e). The Court held a hearing on the two motions on May 3, 2024, and took the matters under submission.

On May 8, 2024, the Court granted the motion to compel arbitration for the periods of Plaintiff’s admission from March 29, 2022 to October 31, 2023 at the facility. The Court granted Defendants’ request for a stay of the action pending the resolution of the arbitration (including claims following October 31, 2023 after Plaintiff was transferred from the facility to a hospital, until December 29, 2023 when she was transferred to a different care facility). The Court set an Arbitration Status Conference for November 6, 2024.

The Court took Plaintiff’s motion for trial preference off-calendar as moot. The Court stated that once the arbitration was complete, the Court would reexamine the need to prioritize the trial of any remaining claims.

C. Motion on Calendar

On July 12, 2024, Plaintiff filed a motion for trial preference pursuant to CCP § 36(a) and (e).

On August 5, 2024, Defendants filed an opposition brief.

On August 9, 2024, Plaintiff filed a reply brief.

DISCUSSION

Plaintiff moves for trial preference so that trial will be set within 120 days of the hearing date. The Court notes that no trial date has been set in this action.

Thus, the Court finds Plaintiff’s motion for trial preference to be improper at this time. As indicated above, the action has been stayed pending the resolution of the arbitration. Plaintiff has not requested a lift from the stay for the Court to consider this motion on its merits. (The Court notes that while it did not rule on the first motion for trial preference, this second attempt at moving for trial preference is essentially an improper motion for reconsideration of the Court’s order staying the action and statement that it would reexamine the need to prioritize trial of any remaining claims following the arbitration.)

The Court notes that in the reply brief, Plaintiffs argue that they are not seeking any damages for injuries before October 31, 2023 and are only seeking damages for injuries occurring on and after October 31, 2023, such that there is no need for the action to proceed to arbitration. (Reply at p. 2.) If this is the case, the parties should meet and confer regarding whether the arbitration is necessary and stipulating to whether Plaintiffs will be pursuing any claims for damages prior to October 31, 2023, and whether in light of that stipulation the stay should be lifted.

However, at this time, as the action is stayed, the motion for trial preference is denied. Plaintiff may move for trial preference following the conclusion of the arbitration proceedings.

CONCLUSION AND ORDER

Plaintiff’s motion for trial preference is denied. The action is currently stayed pending the resolution of the arbitration. Plaintiff may move for trial preference following the conclusion of the arbitration proceedings.

Plaintiff shall provide notice of this order.

DATED: August 16, 2024 ___________________________

John Kralik

Judge of the Superior Court