Judge: Lee W. Tsao, Case: 25NWCV00196, Date: 2025-05-01 Tentative Ruling

Case Number: 25NWCV00196    Hearing Date: May 1, 2025    Dept: F

TRAN v. LA MIRADA POST ACCUTE LLC, ET AL.

CASE NO.: 25NWCV00196

HEARING: 05/01/2025 @ 10:30 AM

#19

TENTATIVE ORDER

Plaintiff Kim Tran’s motion for trial preference is GRANTED.

Moving party to give notice.

Plaintiff Kim Tran (Plaintiff) moves for trial preference.

Background

On January 15, 2025, Plaintiff filed this elder abuse action against Defendants La Mirada Post Acute LLC, Sun Meridian Management Services LLC, Frank D. Johnson, David Johnson, and Does 1 through 250 (Defendants). The complaint alleges Defendants wrongfully withheld care and services from Plaintiff and that employees at Plaintiff’s care facility assaulted Plaintiff both physically and sexually. The complaint asserts two causes of action: (1) elder abuse and (2) assault & battery.

On April 24, 2025, a dismissal was entered as to Doe 1-Saul Tapia.

Legal Standard

Code of Civil Procedure section 36 subd. (a) provides: “[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 and

(2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.

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.” (Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 694.) 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 v. Superior Court (2018) 21 Cal.App.5th 529, 534, citation omitted [explaining that an attorney declaration under Code Civ. Proc. § 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 subd. (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).)

Evidentiary Objections

Defendants make twelve evidentiary objections to the Declaration of Shahab Attarchi, M.D.

Objections nos. 1, 2, 8, 9, 10, 11, 12 are OVERRULED.

Objections nos. 3, 4, 5, 6, 7 are SUSTAINED.

Discussion

Plaintiff moves for trial preference under Code of Civil Procedure section 36. Plaintiff states she is 82 years old with multiple medical conditions.

Plaintiff argues she requires trial preference because of her advanced age and medical conditions. Plaintiff provides the declaration of Shahab Attarchi, M.D. who provides: “To a reasonable degree of medical certainty, I declare that Kim Qui Tran suffers from medical conditions such that her health has rapidly deteriorated and that there exists a substantial medical doubt that Kim Qui Tran has more than six months to live.” (Attarchi Decl., ¶ 6.)

In opposition, Defendants argue that Plaintiff is not entitled to trial preference because her health is not dire enough that her interests would be prejudiced should she pass away and Plaintiff does not include current documentation reflecting recent or acute changes to Plaintiff’s health.

Defendants misstate the requirements under Code of Civil Procedure section 36. “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 is a showing that that party's “health ... is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.” (Fox, supra, 21 Cal.App.5th at 534.)

Here, Shahab Attarchi, M.D. relies on his examination of Plaintiff on March 30, 2025 and his review of Plaintiff’s medical history. Shahab Attarchi, M.D. has personal knowledge that Plaintiff is “a bed bound 82 year old woman with a medical history of stroke with left sided weakness, myocardial infarction, hypertension, anxiety, depression, high cholesterol, dysphagia, history of falls, gait and mobility abnormalities, muscle weakness, multiple urinary tract infections, osteoporosis, occasional dehydration and unintentional weight loss.” (Attarchi Decl., ¶ 9.) Shahab Attarchi, M.D. explains that Plaintiff is unable to provide herself with enough nutrition, is developing a pressure wound from being bed bound, is at high risk for clot formation, and remains at risk for urinary tract infections. (Attarchi Decl., ¶ 9.)

Based on the foregoing, the Court finds Plaintiff has sufficiently complied with the requirements under Code of Civil Procedure section 36. Plaintiff provides the declaration of Shahab Attarchi, M.D. who examined her within the last four weeks. Additionally, Plaintiff has a substantial interest in this litigation as she seeks damages for elder abuse and assault & battery. Therefore, the Court finds that the interests of justice will be served by granting this motion.

Accordingly, Plaintiff Kim Tran’s motion for trial preference is GRANTED.

Defendants’ Requests

Defendants make twelve “due process safeguard” requests if the Court grants this motion.

The Court will not rule on the merits of these requests. An opposition is not the proper forum to raise these arguments. Defendants are not precluded from seeking such relief by way of a separately noticed motion. 

The Court notes that Plaintiff responds to requests numbers 1 and 2 in reply. Plaintiff states she “does not however have any objection to motions for summary judgment heard within thirty days of the trial date, up to and including the day of trial, so long as the Order in this regard applies to both sides. Thus giving Defendants up to June 10, 2025 to file and personally serve its motion if the Court sets trial on August 29, 2025.” The parties may file a stipulation to this effect with the court.