Judge: Mark A. Young, Case: 21STCV30134, Date: 2022-10-25 Tentative Ruling
Case Number: 21STCV30134 Hearing Date: October 25, 2022 Dept: M
CASE NAME: Delbuck v. Bristol Farms, et al.
CASE NO.: 21STCV30134
MOTION: Motion for Trial Preference
Motion for Trial Continuance
HEARING DATE: 10/25/2022
Legal Standard
Trial Preference
A party who is 70 years of age or older, or who reach that age during pendency of the action, may be entitled to preference if they establish to the court's satisfaction that: 1) he has a “substantial interest in the action as a whole”; and 2) his health is “such that preference is necessary to prevent prejudicing the party's interest in the litigation.” (CCP § 36(a), (c)(2).) In contrast to minor plaintiffs, trial¿priority is not mandatory and absolute merely because one of the parties is age 70. The court has discretion to determine the¿extent¿of that party's interest and find as a matter of fact the risk posed of that party's death or incapacity if¿trial¿is delayed. (CCP § 36(a).) However, if the factors are shown, the Court “shall” grant preference.
A¿trial¿must be set within 120 days even if opposing parties have not completed discovery or pretrial preparations. (Swaithes v. Superior Court¿(1989) 212 Cal.App.3d 1082, 1086.) Mere inconvenience to the court or to other litigants is irrelevant. (Rice¿v.¿Superior Court (1982) 136 Cal.App.3d 81, 89-94; see Polibrid Coatings, Inc. v. Superior Court (2003) 112 Cal.App.4th 920, 923-924 [when brought into case after over half the time to litigate has passed, party should be given “at least enough time” to “reasonably complete discovery and bring a summary judgment motion.”].) Thus, the Court¿generally focuses on the moving parties’ burden, rather than striking a balance between the conflicting interests of opposing litigants.
A declaration supporting a motion for CCP section 36(a)¿preference¿“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.” (CCP § 36.5.) Accordingly, an attorney's declaration can consist entirely of hearsay and conclusions. (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534.)
Where a motion for preference is based on terminal illness of a party, clear and convincing medical documentation of the party's health is required. (CCP § 36(d). Moreover, the court has the general discretionary power to grant priority to any case upon a showing of good cause, i.e. “that the interests of justice will be served by granting this¿preference.” (CCP § 36(e).) Finally, the Court notes that preference cannot set a trial so early as to deprive defendant of reasonable opportunity for discovery or pretrial preparation and violate due process of law. (Roe v. Superior Court¿(1990) 224 Cal.App.3d 642, 643;¿Peters v. Superior Court (1989) 212 Cal.App.3d 218, 227.)
Continuance of Trial
Pursuant to California Rules of Court (CRC), Rule 3.1332(a), “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” Under CRC Rule 3.1332(b), “A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.”
Under CRC Rule 3.1332(c), “[a]lthough continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may include good cause include:
(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;
(2) The unavailability of a party because of death, illness, or other excusable circumstances;
(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;
(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;
(5) The addition of a new party if:
(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or
(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;
(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or
(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.”
CRC Rule 3.1332(d) sets forth other factors that are relevant in determining whether to grant a continuance.
EVIDENTIARY ISSUES
The objection to the entirety of the Melo declaration is OVERRULED.
Analysis
The Court is confronted with competing motions regarding a trial date. On one hand, Defendant/Cross-Complainant Bristol Farms and Cross-Defendant Jade OPCO CA LLC seek to continue trial and oppose Plaintiff’s request for priority. On the other, Plaintiff requests that the Court deny the continuance, and grant her request for priority, setting the trial within 120 days of the order. Given the nature of priority, the Court will first examine whether Plaintiff is entitled to trial priority.
Trial Preference
Plaintiff claims that she is entitled to priority under Code of Civil Procedure section 36(a). Plaintiff turned 70 in September 2022, during the pendency of this suit. Plaintiff has a substantial interest in the case as a whole.
The Court, however, is not convinced that Plaintiff health is “such that preference is necessary to prevent prejudicing the party's interest in the litigation.” Plaintiff relies on a theory that she is in poor mental health which is continuing to deteriorate every day. Plaintiff has been and is suffering from Depression, Anxiety, Major Depressive Disorder, Hypertension (High Blood Pressure), Hypothyroidism, Thyroid Disease, Hypokalemia, Myalgia, Colitis, Celiac Artery Stenosis, and Heart/Cardiac Murmur. Plaintiff takes the following eight medications daily: Lamictal, Lexapro, Trazodone, Xanax, Norvasc, Diazine, Metoprolol, and Levothyroxine. Plaintiff has a history of abnormal ECG’s and Panic Attacks in addition to a meniscus that was surgically repaired and a Hysterectomy. Plaintiff has also been recently diagnosed with Breast Cancer. (Id. ¶ 5; Exhibit 3 to SN Decl.) This causes additional anxiety because six members in her immediate family have had cancer and died as a result. In August 2022, Plaintiff wanted to jump off her balcony and cause herself immediate harm because her depression, anxiety, stress and high blood pressure has intensified along with her cancer diagnosis. This resulted in her being placed under a 5150 hold.
Plaintiff specifically relies on her mental health. She claims that her mental health continues to deteriorate and be affected by the physical and mental stresses discussed above. She provides declarations from her mental health care providers who treated her. All of the providers are under the opinion that Plaintiff is “unstable” and “in all probability [will] not improve,” and that “the lawsuit will lead to further decompensation” of her mental health. (Reply Decl., Ex. 8.) For instance, a psychiatrist that has worked with Plaintiff since the early 2000’s is of the opinion that “prolonging this lawsuit will in all probability lead to further decompensation of Ms. Delbuck’s mental health. In fact, Ms. Delbuck’s mental health will continue to further deteriorate as time goes by and this could lead to suicide attempt, or further psychiatric hospitalization.” (Id., Ex. 9.) Another is of the opinion that “rapid finalization of this legal lawsuit, will help her to get the healing that she very much needs at this time.” (Id., Ex. 10.)
Plaintiff argues that her case would be destroyed if Plaintiff is incapacitated (i.e., by self-harm), since Defendant destroyed the surveillance footage depicting how the incident occurred. Plaintiff thus concludes that her health is such that the Court should grant priority.
Defendant presents evidence that this is not the life-or-death situation that Plaintiff claims. Defendant argues that the claims are not supported by either Plaintiff’s medical records, her deposition testimony, or the testimony of her own treating physician. Dr. Needham, Plaintiff’s primary care physician for more than 20 years, examined Plaintiff in late September of this year, and recently testified that the cancer is “very low grade” and could be described as “stage zero.” (Nahavandi Decl., Ex. A, at 10:19-23.) Plaintiff appeared to be in a “normal” mood, and did not communicate any suicidal ideation (Id., at 57.) Plaintiff also mentioned that she was going to go on an international trip to Portugal or Brazil. (Id. at 15.)
Cross-Defendant observes that on June 16, 2022, Plaintiff testified at deposition that she expects to be present at the trial in February 2023, and that there was no medical reasons that she would not participate. (Levine Decl., Ex. A, at 224-225.) Plaintiff also mentioned that her “health, generally, is good. [Her] knee is terrible.” (Id., at 31.)
Based on this record, Plaintiff’s evidence fails to establish that her mental and physical health are such that preference is necessary to protect her interest in this litigation. Plaintiff has longstanding and managed medical and mental conditions. Her medical experts are generally of the opinion that Plaintiff’s situation and mental health will continue to deteriorate. However, they do not go as far as to conclude that Plaintiff is in immediate danger of incapacitation. Instead, they believe that Plaintiff’s mental health will benefit from resolving this lawsuit.
Therefore, the Court declines to grant preference at this time.
Trial Continuance
Defendant moves for a continuance of the trial by 60-90 days. However, it appears that this motion is moot because trial is not currently set. On September 28, 2022, this case was transferred sua sponte from Department 31 of the Los Angeles Superior Court, Central District, to Department M of the Los Angeles Superior Court. According to the transfer order, “Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court… COUNSEL ARE TO NOTE THAT EVEN IF THE CASE SUMMARY STILLS [SIC] SHOWS DEPARTMENT 31 WITH FUTURE HEARINGS, COUNSEL ARE TO CONSIDER THEM TO BE OFF CALENDAR UNTIL RESET IN THE NEW DEPARTMENT ASSIGNED EITHER BY THE COURT STAFF OR THROUGH THE COURT’S RESERVATION SYSTEM BY MOVING PARTY.” (9/29/22 MO.)
As there is no current trial date, the request for a continuance of the trial date is moot. The Court, of course, must now re-set the trial date based on its availability, keeping in mind the currently reserved motions for summary judgment/adjudication on January 10, 2023, and February 2, 2023.