Judge Mark A. Young, Case 22STCV20113 2023-05-18 Tentative Ruling

Judge: Mark A. Young, Case: 22STCV20113, Date: 2023-05-18 Tentative Ruling

Case Number: 22STCV20113 Hearing Date: May 18, 2023 Dept: M

CASE NAME: Weiss, v. Uber Technologies Inc., et al.

CASE NO.: 22STCV20113

MOTION: Motion for Trial Preference

HEARING DATE: 5/19/2023

Legal Standard

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 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 declaration supporting a motion for Code of Civil Procedure 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.)

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. That said, the Court may not set a trial so early as to deprive defendant of reasonable opportunity for discovery or pretrial preparation, as this would 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.)

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).)

Analysis

Plaintiff Robert Weiss renews his request for trial preference. This request was previously denied on February 23, 2023. He asserts that he is entitled to preference for trial setting under Code of Civil Procedure sections 36(a) and (e). It is undisputed that Plaintiff is over the age of 70, as he is currently 77 years old. (Weiss Dec., ¶ 2; see also, Emrani Dec., ¶ 2.) Further, Plaintiff clearly has a substantial interest in the litigation as the sole plaintiff. Thus, the only issue is whether Plaintiff demonstrates that his health condition is such that a preference is necessary to prevent prejudicing his interest in this litigation.

Plaintiff argues that if trial is delayed, his instant injuries, history of heart disease and advanced age will likely preclude his material participation at trial. Plaintiff suffered from heart disease for at least the past decade. (Weiss Decl., ¶ 3a.) Plaintiff suffers from coronary artery disease and has had coronary stenting. (Id.) He developed a deep vein thrombosis (DVT) and was prescribed Xarelto. (Id.) Recently, he was hospitalized for DVT despite his medication. (Id.) Plaintiff provides that because of the subject incident, he sustained serious lumbar injuries. (Weiss Dec., ¶ 4.) On April 14, 2023, he underwent surgery for permanent placement of a spinal cord stimulator implant. (Id., Ex. 3.) Plaintiff declares that his physical and mental well being has progressively declined, with lower back pain becoming worse. (Id., ¶ 4a.) Since his recent surgery, he has been suffering “extreme” pain. (Id., ¶ 4b.) On April 18, 2023, he was hospitalized for a day and a half due to shaking, foaming at the mouth, and a lowered heart rate. (Id., ¶¶4b-4c.)

Plaintiff’s treating physician, Naveed M. Natanzi, D.O., informs the Court that Plaintiff continues to “regress both physically and mentally. Plaintiff’s mentation, memory, and alertness have regrettably grossly declined as Plaintiff’s pain and physical dysfunction continue.” (Natanzi Dec., ¶ 3.) Dr. Natanzi further opines that he has “Plaintiff’s overall health and wellness would be in a much better place if this legal process were expedited. Moreover, [he is] concerned that due to Plaintiff’s ongoing physical and mental regression, Plaintiff’s ability to participate in this legal proceeding continues to deteriorate as time passes.” (Natanzi Decl., ¶ 4, emphasis added.)

Defendants oppose and note that his medical records suggest that he is overstating his physical and mental decline. The review of the record shows neither any indication of shortened life expectancy, nor any restrictions on Plaintiff’s activities. Contrary to the conclusory and non-descript declarations, Defendants contend that his medical records do not reference deterioration of Plaintiff’s mental condition. Thus, the record does not persuasively indicate that he will become incapable of participating in this litigation. This weighs against the risk that beginning trial in November 2023 would prejudice Plaintiff’s interest in this action.

On April 18, 2023, Dr. Natanzi noted that Plaintiff’s son and wife were concerned about weakness and “altered mental status.” (Roganski Decl., Ex. 5, 4/18/23 visit.) Dr. Natanzi recommended going to the emergency room to rule out postoperative infections or other possible central pathology. (Id.) Otherwise, there is no indication that there is any mental or physical decline. Past notes do not indicate any such issues and recent notes consistently show improvement, as opposed to gross decline. For example, the note from April 21, 2023, states that Plaintiff “has some pain at the implantation site but has no back pain remarkably,” that he was “alert and oriented x4,” and that Dr. Natanzi was “very happy with Robert’s progress.” (Ex. 5; 4/21/23 visit.) Other notes created after the previous motion report that there was “95% resolution of his axial lumbosacral pain since the onset of stimulation. He has had ongoing post-procedural pain at the T12-L1 area that has somewhat improved but continues to bother him, but the pain that we initiated the trial for, as he reports, has ‘magically gone away’.” (Ex. 5; 3/23/23 visit.) There is no mention of cognitive decline.

On balance, the record weighs against a finding that there is a substantial risk that denying preference would prejudice Plaintiff’s interest in this action. Accordingly, Plaintiff’s motion is DENIED. Trial is scheduled for November 6, 2023.