Judge: Michael E. Whitaker, Case: 22STCV02634, Date: 2023-03-23 Tentative Ruling

Case Number: 22STCV02634    Hearing Date: March 23, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Ruth Carson (Plaintiff) moves the court for an order granting a trial preference due to Plaintiff’s age and poor, failing health pursuant to Code of Civil Procedure section 36, subdivision (a).  Defendant Matthew William Krautstrunk (Defendant) opposes the motion.  Plaintiff replies.

ANALYSIS

Code of Civil Procedure section 36 provides in part: “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.  (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).)

Per Code of Civil Procedure section 36.5, “An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 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.” (See also Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534 [“a motion under subdivision (a) may be supported by nothing more than an attorney's declaration “based upon information and belief as to the medical diagnosis and prognosis of any party’”].)  However, “Admissible evidence is still required as to the party's age (e.g., declarations by party or admissible records showing he or she is over 70). The attorney's declaration is not sufficient for this purpose.”  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 12:247.3 (hereafter Weil & Brown).)

The Court of Appeal in Koch-Ash v. Superior Court, held:  “The determinative question presented is whether section 36, subdivision (a), leaves trial courts with discretion to deny preferential trial rights to litigants who qualify under that statute. Here, the trial court claims such discretion to serve judicial economy and to protect defendants from serial trials that might occur if consolidated cases are severed to comply with section 36 preference requirements. We conclude that section 36, subdivision (a), as construed by this court in Rice v. Superior Court (1982) 136 Cal.App.3d 81, 185 Cal.Rptr. 853, is mandatory and absolute in its application and does not allow a trial court to exercise the inherent or statutory general administrative authority it would otherwise have.”  (Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 692.)  Further the appellate court stated:  “We are mindful of and appreciate that respondent's ruling was based upon its view that it was striking a fair balance between these plaintiffs' rights to a section 36 preferential trial and the ‘interest of the court to avoid potentially wasteful serial trials.’ However, [the trial court] had no discretion to so balance interests. [The trial court’s] authority and jurisdiction was limited by section 36, subdivisions (a) and (e), to setting trial for a date within 120 days of granting the preference motion. For [the trial court] to have ignored the unquestionably controlling authority of the statute, as construed by Rice, was an abuse of discretion.”  (Id. at p. 698.)[1]

Further, it is irrelevant that a motion for statutory preference may result in inconvenience to the court or other litigants or may prevent the completion of discovery or other pretrial matters. (Swaithes v Superior Court (1989) 212 Cal.App.3d 1082, 1085-1086.)  Cases entitled to this preference must be set for trial ahead of other cases.  (See Miller v Superior Court (1990) 221 Cal.App.3d 1200, 1206-1212.)  A court has no discretion to delay a trial setting after a motion for trial preference is granted. (Miller, supra, 221 Cal.App.3d at p. 1204; Sprowl v. Superior Court (1990) 219 Cal.App.3d 777, 781; Vinokur v. Superior Court (1988) 198 Cal.App.3d 500, 502.) 

            Here, Plaintiff advances the declaration of counsel for Plaintiff, Parham Nikfarjam (Counsel.)  Counsel avers that Plaintiff is 71 years old.  (Declaration of Parham Nikfarjam, ¶ 2, Exhibit A.)  Counsel states he is informed that Plaintiff is in the early development of age-related memory loss in addition to her orthopedic injuries.  (Declaration of Parham Nikfarjam, ¶ 8.). Further Counsel attests that Plaintiff’s orthopedic injuries from the underlying incident have put her at risk for further injury and incapacity.  (Declaration of Parham Nikfarjam, ¶ 9.)  Counsel explains that while Plaintiff’s age-related memory loss is not terminal, it is significant and deteriorates her ability to testify as a witness resulting in unfair prejudice to Plaintiff if she is not granted trial preference.  (Declaration of Parham Nikfarjam, ¶ 10.)  Counsel provides examples of the effect of Plaintiff’s deteriorating memory, stating that Plaintiff cannot keep appointments with doctors and counsel, she is unable to remember to pay her rent and utilities, and she is constantly losing and misplacing her personal belongings such as her ID Card.  (Declaration of Parham Nikfarjam, ¶ 10.). Additionally, Plaintiff was unable to answer many questions due to her age-related memory loss.  (Declaration of Parham Nikfarjam, ¶ 11.)

            In opposition, Defendant first argues that Plaintiff’s motion is moot because the current trial date is already less than 120 days from the date of hearing for the instant motion.  The trial is currently set for July 21, 2023, exactly 120 days from the March 23, 2023 hearing date.  Further Defendant argues Plaintiff is not entitled to a trial preference as she has not demonstrated that she is of such ill health that she will be unable to meaningfully participate in trial.  Defendant states that Plaintiff was recently deposed on January 12, 2023 and was able to sit through six to seven hours of testimony to discuss the accident, her injuries and extensive treatment.  Defendant describes that Plaintiff appeared to be in good health and responded to all questions without trouble understanding the questions being asked.  Defendant concludes that Plaintiff is not in ill health, requiring a priority trial date and plaintiff’s motion should be denied as she does not meet the statutory requirement.

            In reply, Plaintiff requests that the Court maintain the current July 21, 2023 trial date, but also grant the additional protections provided under Code of Civil Procedure section 36, such as the strict limitation on trial continuances.  (Code Civ. Proc., § 36, subd. (f).).  Counsel advances the deposition transcript from the January 23, 2023 session to further highlight Plaintiff’s frailty and challenges with memory.  (Declaration of Parham Nikfarjam in Reply, ¶ 9, Exhibit A.)  Counsel states that Plaintiff used a walker and needed escorts during breaks in deposition.  (Declaration of Parham Nikfarjam, ¶ 11.)  Further, Plaintiff stated she did not know or did not recall over 118 times and repeatedly advised that she did not remember key facts and information due to her age-related memory.  (Declaration of Parham Nikfarjam, ¶ 15, Exhibit A.)

The Court finds Plaintiff has not demonstrated that her health is such that a preference is necessary to prevent prejudicing her interest in the litigation.  Plaintiff has only advanced the declaration of her Counsel to describe her age related memory loss and has failed to include any official diagnosis or professional medical recommendation advising of the severity of Plaintiff’s memory loss and its potential effect on upcoming trial proceedings.  Plaintiff has not demonstrated a temporal risk associated with her present condition such that trial preference is necessary.   

The Court therefore denies without prejudice the motion for trial setting preference. Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such.