Judge: Michelle C. Kim, Case: 22STCV37556, Date: 2023-04-27 Tentative Ruling

Case Number: 22STCV37556    Hearing Date: April 27, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Doris Goldstein (“Plaintiff”) filed this action against defendants City of Los Angeles, Front Porch Communities & Services, Inc., and Kingsley Manor Retirement Community for damages relating to Plaintiff’s trip and fall while walking on a sidewalk. 

Plaintiff moves for trial preference based on her age and because her physical condition is declining.  Plaintiff is 91 years old.  Defendant Front Porch Communities & Services, Inc. dba Kingsley Manor Care Center (“Defendant”) opposes the motion, and Plaintiff filed a reply. 

This matter was last heard on February 24, 2023, where it was continued to April 27, 2023, to allow Defendant to respond to a new declaration submitted by Plaintiff’s counsel with the reply papers.  Further, Plaintiff was permitted to file a supplemental brief at least 16 court days before the continued hearing date, and Defendant was to file any supplemental opposition at least nine days before the hearing.  Plaintiff has filed a further supplemental declaration from Plaintiff’s counsel.  No supplemental opposition was filed. 

Plaintiff moves for preference pursuant to CCP §36(a), which provides:

(a) 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.

            Here, Plaintiff states that she is 91 years old and is in poor health.  Plaintiff asserts she is under the care of multiple physicians and is taking 12 different prescription medications for various conditions, including “afib, high blood pressure, vertigo, and other heart and neurological conditions.”  (Mot. at p. 3:10-11.)  Plaintiff asserts that she and her family are concerned that she “may not last until the trial date in this case …”  (Id. at p. 3:12-13.) 

            In opposition, Defendant argues that Plaintiff failed to submit any evidence to support her claim that her current health warrants trial preference.  Defendant further contends that granting trial preference will deprive Defendant of adequate time to complete discovery and will deny Defendant the opportunity to have a motion for summary judgment heard. 

            Plaintiff, in reply, contends that she submitted sufficient evidence about her health condition to show that trial preference is necessary.  Plaintiff’s counsel filed a supplemental declaration with the reply.  Additionally, Plaintiff asserts that Defendant’s contentions that it will be prejudiced if the motion is granted is meritless because preference is mandatory. 

            Plaintiff’s counsel provides that Plaintiff fractured her hip as a result of the incident, and that “Plaintiff is in poor health and is currently under the care of Cardiologist Dr. Shadman, Orthopaedist Dr. Mao, Psychologist Dr. Fitts, Palliative Care Agency A&H Hospice, PCP Dr. Su, and Physical Therapist Eric Choi. She has been prescribed the medications: Eliquis, Metoprolol, Acetaminophen, Diclofenac, Diltiazem, Triamcinolone, Amoxicillin, Fluticasone, Furosemide, Senna along with Calcium and Potassium, for conditions which include high blood pressure, and other heart and neurological conditions.”  (Mot. Sherman Decl. ¶¶ 5, 6.)  Plaintiff’s counsel states that Plaintiff and Plaintiff’s family members are concerned that Plaintiff may not live to see trial.  (Id. at ¶ 7.)  Further, Plaintiff’s counsel in his supplemental declaration filed April 5, 2023, attests that “Plaintiff has had high blood pressure for approximately the last two (2) years, chronic cardiac conditions for approximately the last five (5) years and the atrial fibrillation issue for approximately the last ten (10) years.”  (Second Supp. Decl. ¶ 5.)  Additionally, Plaintiff’s counsel submits a letter from Plaintiff’s cardiologist stating that “[Plaintiff] was recently hospitalized in January 2023 because of atrial fibrillation with ventricular response. She has numerous chronic cardiac conditions which require monitoring and have potential for exacerbation in the future which could potentially lead to recurrent hospitalization or even death.”  (Id. at ¶ 7, Exh. C.)  Plaintiff’s counsel further asserts that after providing a copy of Plaintiff’s cardiologist’s letter to defense counsel, defense counsel indicated Defendant would potentially withdraw its opposition to the motion. 

Plaintiff’s evidence adequately shows her condition has worsened since the incident, and that her health is such that a preference order is necessary.  It is undisputed that Plaintiff is 91 years old, and Defendant does not dispute Plaintiff has a substantial interest in the litigation as the sole plaintiff in this action. 

Therefore, Plaintiff’s motion is granted.  Pursuant to CCP § 36(f) the trial date must be set no more than 120 days after the granting of this motion.  Accordingly, the trial date is set for __________, 2023 at 8:30 a.m. in this Department.  The Final Status Conference is set for _________, 2023 at 10:00 a.m. in this Department. 

Plaintiff is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 27^th day of April 2023