Judge Lee W. Tsao, Case Number: 24NWCV01939, Date: 2025-03-06 Tentative Ruling

Judge: Lee W. Tsao, Case: 24NWCV01939, Date: 2025-03-06 Tentative Ruling

Case Number: 24NWCV01939 Hearing Date: March 6, 2025 Dept: F

ROBSON v. MARSHBURN EYE CENTER, INC., ET AL.

CASE NO.: 24NWCV01939

HEARING: March 6, 2025 @ 10:30 a.m.

#24

TENTATIVE ORDER

Plaintiff Benjamin Robson’s Motion for Trial Preference is GRANTED.

Plaintiff to give notice.

Background

This is a medical malpractice action. On June 24, 2024, Plaintiff Benjamin Robson (“Plaintiff”) filed this action against Defendants Marshburn Eye Center, Inc., David Marshburn, (collectively “Defendants”) and Does 1 to 10. On August 19, 2024, Plaintiff filed the First Amended Complaint (FAC). The FAC alleges Plaintiff underwent cataract eye surgery performed by Defendants. The Complaint alleges Defendants negligently performed the surgery, causing Plaintiff to suffer permanent vision loss. The FAC alleges the following causes of action: 1) Professional Negligence, 2) Intentional Concealment of Material Facts / Fraud, and 3) Breach of Fiduciary Duty.

Plaintiff now moves for a trial preference.

No opposition was filed as of March 5, 2025.

Legal Standard

“On petition of any party over 70, [Code of Civil Procedure] section 36, subdivision (a), provides that the granting of calendar preference is mandatory in some circumstances.” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 533.)

A court must grant a trial preference under Code Civil Procedure section 36, subdivision (a) where the following two factors are present: (1) the party has a substantial interest in the action as a whole; and (2) the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. (Ibid.) Where a motion for trial preference is granted, the clerk shall set the case for trial not more than 120 days from that date. (Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 694.) The purpose of Section 36 is “to avoid an irrevocable loss of a qualifying plaintiff’s substantive right to a trial during his or her lifetime and to potential recovery of damages that would not survive plaintiff’s pretrial death.” (Ibid.) A motion for trial preference under subdivision (a) does not require a doctor’s declaration and “may be supported by nothing more than an attorney’s declaration based upon the information and belief as to the medical diagnosis and prognosis of any party.” (Fox, supra, 21 Cal.App.5th at p. 534, citation omitted [explaining that an attorney declaration under CCP § 36.5 can consist entirely of hearsay and conclusions.]; see also Code Civ. Proc., § 36.5 [affirming that an attorney declaration may form the basis of the motion].)

Under Code of Civil Procedure Section 36, subdivision (d), the court has discretion to “grant a motion for 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 this preference.” (Code Civ. Proc., § 36, subd. (d).) Further, “[n]otwithstanding 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 this preference.” (Code Civ. Proc., § 36, subd. (e).)

Discussion

Plaintiff is currently 92 years old, over the qualifying age required under Code of Civil Procedure Section 36. (Murin Decl., ¶ 4; Robson Decl., ¶ 4.) The Court finds Plaintiff has a substantial interest in the action, as he seeks damages for professional negligence. The Court further finds that Plaintiff’s health is deteriorating such that a trial preference is necessary to avoid prejudicing his interest in the litigation. Plaintiff has suffered from cancer for the past four years, and it is unpredictable whether he will be able to continue litigating this case within the next few years. (Murin Decl., ¶¶ 4-5, Exh. A; Robson Decl., ¶ 5.) The Court therefore finds all requirements of Code of Civil Procedure Section 36 have been met, and a trial preference is warranted.

Accordingly, Plaintiff’s Motion for Trial Preference is granted. Trial is to be set within 120 days of this hearing pursuant to Code of Civil Procedure Section 36, subdivision (f).