Judge Lee W. Tsao, Case Number: 25NWCV00174, Date: 2025-03-13 Tentative Ruling

Judge: Lee W. Tsao, Case: 25NWCV00174, Date: 2025-03-13 Tentative Ruling

Case Number: 25NWCV00174 Hearing Date: March 13, 2025 Dept: F

BRUMMER v. FELSON BOARD AND CARE, INC.

CASE NO.: 25NWCV00174

HEARING: 03/13/25

#22

Plaintiff’s motion for trial preference is CONTINUED to Thursday, March 20, 2025 at 9:30 a.m. in Dept. SE-F.

Moving Party to Give notice.

This elder abuse action was filed by Plaintiff BERYL GRAY BRUMMER, by and through her Attorney-in-Fact, Kathryn Ivy Olson (“Plaintiff”) against Defendant FELTON BOARD AND CARE, INC. (“Defendant”) and DOES 1 through 40, inclusive on January 15, 2025.

Plaintiffs allege that “[o]n January 1, 2025, while a resident at the FACILITY, Ms. BRUMMER sustained serious injuries when she was left unattended in a bathroom, fell, and struck her head, causing a severe eye injury, a hip fracture, and a broken foot.” (Complaint ¶21.) Plaintiff further alleges that while Plaintiff was a resident at Defendant’s facility, “Defendants… while acting as custodial caregivers, neglected Ms. BRUMMER by failing to provide care for her physical and mental health needs and by failing to exercise the degree of care that a reasonable person in a like position would exercise….” (Complaint ¶37.)

The Complaint asserts the following causes of action:

1) Elder Abuse/Neglect; and

2) Negligence/Willful Conduct

Plaintiff now moves for trial preference under CCP §36(a).

“(a) A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” (CCP §36(a).)

“An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36.” (CCP §36.5.)

“In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers form 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 preference.” (CCP §36(d).)

Plaintiff was born on July 26, 1933 and is currently 91 years old. In support of the Motion, and pursuant to CCP §36.5, counsel for Plaintiff Alex Feldman submits his unsigned declaration, wherein he declares, under penalty of perjury: “Based on information and belief and medical record review, trial preference is necessary in that Ms. Brummer is elderly, non-ambulatory, and suffers form a history of significant and active health conditions including senile degeneration of the brain and a fractured femur. She is currently on hospice, meaning that a physician has determined that Ms. Brummer will likely die within the next six months. [¶] Upon information and belief, Ms. Brummer’s overall health has continued to decline as Ms. Brummer has become increasingly sedentary in nature and dependent upon others for physical assistance with all her activities of daily living due to her recently fractured femur….” (Feldman Decl., ¶¶3-4.)

In Opposition, Defendant argues that Plaintiff fails to make a sufficient showing under either CCP §36(a) or (d) to show that preference is necessary to protect her interests in this litigation “due to the omission of evidence which suggests that preference is necessary to prevent prejudicing her interests in this litigation. None of the diagnoses presented by Plaintiff suggest an imminent risk of death, nor does any of the submitted evidence include a prognosis.” (Opp. 3:15-16.)

Plaintiff moves for trial preference under CCP §36(a)—not CCP §36(d). The standard under CCP §36(a) “requires 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.” (Fox v. Sup. Ct. (2018) 21 Cal.App.5th 529, 534.) “Section 36, subdivision (a), says nothing about ‘death or incapacity.’ Whether there is ‘substantial medical doubt of survival… beyond six months’ is, to be sure, a matter of specific concern under subdivision (d), but the relevant standard under subdivision (a) is more open-ended. The issue under subdivision (a) is not whether an elderly litigant might die before trial or become so disabled that she might as well be absent when trial is called. Provided there is evidence that the party involved is over 70, all subdivision (a) requires a showing that the party’s ‘health… is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.’” (Id.)

Notwithstanding, the Court is unable to grant Plaintiff’s Motion at this time. Plaintiff’s Counsel’s CCP §36.5 declaration submitted in support of this Motion for Trial Preference is not signed. Without verification of declaration under penalty of perjury, it is as though the declaration does not exist and cannot be considered as a basis for granting the Motion. Where no other declarations or evidence are submitted to substantiate Plaintiff’s medical diagnosis and prognosis, the requirements for trial preference under CCP §36(a) and 36.5 have not been met.

In the interests of justice and in favor of judicial efficiency, the Motion is CONTINUED as indicated above. Plaintiff/Moving Party is ORDERED to FILE a Notice of Errata with a signed copy of the Declaration of Alex Feldman, Esq. that was originally submitted in support of the Motion attached, by no later than Monday, March 17, 2025.