Judge: Loren G. Freestone, Case: 37-2023-00052132-CU-PO-CTL, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 02, 2024

05/03/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2023-00052132-CU-PO-CTL THORNTON VS VICTORIA POST ACUTE CARE [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Plaintiff Ruth Thornton's motion for trial preference is GRANTED.

'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.' (Code Civ. Proc., § 36, subd. (a).) Preference is mandatory when the statutory conditions are met. (See Miller v. Superior Court (1990) 221 Cal.App.3d 1200, 1204; accord Pabla v. Superior Court (2023) 90 Cal.App.5th 599, 601–604.) When a motion for preference is granted, the matter must be set for trial within 120 days. (Code Civ. Proc., § 36, subd. (f).) Thornton is 80 years old. As the plaintiff, she has a substantial interest in this case. Thornton has a long list of active medical conditions that warrant preference, including an infected right hip (allegedly caused by Defendants), lung cancer that has required surgery and radiation, radiation pneumonitis, emphysema, COPD, chronic respiratory failure, an aortic aneurism, atherosclerosis of her aorta, high blood pressure, and chronic kidney disease, among others.

Defendants argue that the medical records Thornton submitted with her motion do not substantiate all of her ailments. However, a party moving for preference is not required to submit any medical records.

(See Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534.) Even an attorney declaration based on information and belief, and consisting 'entirely of hearsay and conclusions,' is sufficient. (Ibid.; see Code Civ. Proc., § 36.5.) The same rule does not apply to the party opposing the motion, who 'must obtain competent medical or other evidence' to show that preference is not warranted. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 12:247.4; see Fox, supra, 21 Cal.App.5th at p. 535.) Here, Thornton submitted a declaration identifying each of her active medical conditions, as did her attorney. Although not required, Thornton also submitted some of her medical records. Defendants did not submit any evidence in opposition contradicting Thornton's summary of her health.

Defendants also argue that Thornton's health is not so dire as to warrant a preference (e.g., that there is no evidence she has been placed in hospice). However, the issue '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,' but rather simply whether 'the 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 pp. 534–536 [error to deny preference Calendar No.: Event ID:  TENTATIVE RULINGS

3089784  51 CASE NUMBER: CASE TITLE:  THORNTON VS VICTORIA POST ACUTE CARE [IMAGED]  37-2023-00052132-CU-PO-CTL where the plaintiff had lung cancer requiring chemotherapy, coronary artery disease, difficulty performing basic life functions, confusion, and other ailments].) As set forth above, Thornton's health is such as to warrant a preference.

Defendants further argue that preference will make it difficult to prepare for trial, and that they need time to conduct discovery and potentially bring a motion for summary judgment. Defendants' right to due process, including their asserted need to conduct discovery and file dispositive motions, does not overcome Thornton's statutory right to trial preference. (See Pabla, supra, 90 Cal.App.5th at p. 604, fn.

5; Fox, supra, 21 Cal.App.5th at p. 535 & fn. 3; Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085–1086; Miller, supra, 221 Cal.App.3d at p. 1206.) That is particularly true where, as here, Thornton has agreed to expedite discovery and Defendants will ultimately have approximately 9 months from the date of service of the complaint to prepare for trial.

The motion is therefore granted. The court will set the matter for trial within 120 days at the concurrent case management conference.

To the extent the motion is granted, Defendants request 18 'accommodations.' Thornton indicated in her reply that she is willing to agree to most of the proposed accommodations. The parties are directed to meet and confer and submit a stipulation as to any agreements reached.

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