Judge: Mark A. Young, Case: 24SMCV00313, Date: 2024-07-18 Tentative Ruling

Case Number: 24SMCV00313    Hearing Date: July 18, 2024    Dept: M

CASE NAME:           Razavi v. Nigro, et al.

CASE NO.:                24SMCV00313

MOTION:                  Motion for Trial Preference (§36(d))

HEARING DATE:   7/18/2024

Legal Standard

“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 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 the preference.”  (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).)

Analysis

Plaintiff Ziba Razavi moves for trial preference on terminal illness grounds. However, Plaintiff fails to present “clear and convincing” evidence using “medical documentation” which shows that there is a substantial medical doubt of Plaintiff’s survival beyond six months.

Plaintiff’s request for judicial notice is DENIED. Studies on the lifespan of rural Iranian females in 2008 and/or the reduction of lifespan based upon chronic diseases or medical conditions are not facts subject to judicial notice.

Even considering the attached exhibits, Plaintiff still does not present sufficient evidence. Counsel states that Plaintiff suffers from coronary artery calcification, carotid artery disease, mitral valve prolapse associated with mitral regurgitation, hypertension, hyperlipidemia, diabetes mellitus, sleep apnea, breast cancer (post partial mastectomy and lymphadenectomy after metastasized and chemotherapy and radiation therapy), splenectomy, orthopedic issues, depression, and anxiety. (Frank Decl., ¶ 7.) Counsel believes that these medical conditions should lower Plaintiff’s life expectancy by 17.6 years based upon a single, apparently inapposite medical study. (Id.) Coupled with the average lifespan of rural Iranian females in 2008 (approx. 74.4 years), and Plaintiff’s current age of 67, counsel expects Plaintiff to have died about a decade ago. The court would not consider this argument, which lacks any sort of robust statistical foundation, to be sufficient evidence of Plaintiff’s current medical conditions and the likelihood of her survival considering her specific conditions.

Plaintiff also submits a declaration from a doctor that offers the conclusion that a patient with Plaintiff’s medical issues “may pass within the next six months however some patients do live longer so not a certainty.” (Brooks Decl.) The doctor’s declaration equivocates on this point, and thus cannot be considered “clear and convincing” evidence that there is a “substantial doubt” of Plaintiff’s survival beyond six months.

Accordingly, the motion is DENIED.