Judge: Michael Shultz, Case: 23CMCV00390, Date: 2023-06-29 Tentative Ruling
Case Number: 23CMCV00390 Hearing Date: June 29, 2023 Dept: A
23CMCV00390 Mary Ann Nabhani v. FH & HF-Torrance I,
LLC, et al.
[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION FOR TRIAL PREFERENCE
I.
BACKGROUND
Plaintiff
alleges elder abuse and negligence claims arising from injury sustained while
she was in Defendants’ custodial care at a skilled nursing facility. The action
was filed on March 15, 2023. A trial date has not been set. A case management
conference is set for November 15, 2023.
II.
ARGUMENTS
Plaintiff
moves for a preferential trial setting as she is over 70 years old and is
unlikely to survive beyond the next six months because of rapidly deteriorating
health.
Defendants
do not dispute Plaintiff’s qualification for a preference, however, Defendants
request that the court set the matter for trial to take place on the 120th
day from the date of the hearing to enable as much time for Defendants to
prepare their defense in this complex matter. Less than 120 days will violate
Defendants’ due process rights.
The
Court’s file does not reflect that Plaintiff filed a reply brief by June 22,
2023 (five court days before the hearing). (Code Civ. Proc., § 1005.)
III.
LEGAL STANDARDS
To
obtain a preferential trial setting, a plaintiff must be over 70 years of age,
have a substantial interest in the action as a whole and demonstrate that her
health is “such that a preference is necessary to prevent prejudicing the
party’s interest in the litigation.” (Code Civ. Proc., § 36 subd. (a).) A declaration supporting a motion for § 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.” (Code Civ. Proc., § 36.5.)
The
“obvious” intent of the legislation is to “ensure that elderly persons not be
denied their rights in civil litigation because of the current lengthy delays
in having cases set for trial.” (Greenblatt v. Kaplan's Rest. (1985) 171 Cal.App.3d
991, 994 [“purpose of subdivision (a) to
safeguard litigants beyond a specified age against the legislatively
acknowledged risk that death or incapacity might deprive them of the
opportunity to have their case effectively tried and the opportunity to recover
their just measure of damages or appropriate redress.”].)
If
conditions for preference are met, the opposing parties’ inconvenience or
failure to complete discovery is irrelevant. (Swaithes v. Superior Court (1989) 212 Cal.App.3d
1082, 1085 [261 Cal.Rptr. 41]. [“Elderly
litigants are clearly entitled to have their case effectively tried and to the
opportunity to enjoy during their own lifetime any benefits received.”].)
IV.
DISCUSSION
Defendants
do not dispute that Plaintiff is entitled to a preference. (Opp. 2:19-21.) If the
conditions for a preferential setting are met, the Court is required to set
trial for not more than 120 days from the date of the hearing. (Code Civ. Proc., § 36 subd. (f).) There shall be no continuance beyond 120 days from the granting
of the motion for preference “except for physical disability of a party or a
party's attorney, or upon a showing of good cause stated in the record. Any
continuance shall be for no more than 15 days and no more than one continuance
for physical disability may be granted to any party.” (Id.)
Defendants
contend that a date less than 120 days from the hearing will violate their
rights to due process as a preferential setting will limit their opportunities
for pretrial discovery preparation. Defendants cite Roe v. Superior Court (1990)
224 Cal.App.3d 642 and Peters v. Superior Court (1989)
212 Cal.App.3d 218.) However, the due process
implications of Section 36(a) have not been decided. (Roe at 643, fn. 2.)
V.
CONCLUSION
Based
on the foregoing, the Plaintiff’s motion is granted. The 120th day
from the date of this hearing is Friday, October 27, 2023. The court will set dates after consulting with
the parties.