Judge: Ralph C. Hofer, Case: 24GDCV00213, Date: 2024-12-06 Tentative Ruling
Case Number: 24GDCV00213 Hearing Date: December 6, 2024 Dept: D
TENTATIVE RULING
Calendar: 9
Date: 12/6/2024
Case No: 24 GDCV00213 Trial Date: April 20, 2026
Case Name: Jannat v. Eyvazi
MOTION FOR TRIAL PREFERENCE
Moving Party: Plaintiff Abbas Jannat
Responding Party: Defendant Norik Eyvazi
RELIEF REQUESTED:
Order establishing Plaintiff’s entitlement to preference pursuant to the provisions of Code of Civ. Proc. § 36(a) and setting a trial date in this action within 120 days.
SUMMARY OF FACTS:
Plaintiff Abbas Jannat alleges that in November of 2023 plaintiff was crossing the street within a crosswalk, and had the green traffic light along with the pedestrian walk signal, when defendant Norik Eyvazi, while driving a vehicle, failed to yield the right of way and struck plaintiff, as a result of which plaintiff suffered severe and significant harm, injuries and damages.
The complaint alleges a cause of action for negligence.
ANALYSIS:
Procedural
Declaration Incomplete
Plaintiff seeks an order granting a preferential trial setting. The declaration submitted with the motion fails to comply with CCP section 36 (c), which provides, in pertinent part:
“(c) Unless the court otherwise orders:
(1) A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared.”
Weil & Brown observe,
“The preference motion must be supported by a ‘declaration of the moving party (or presumably, the moving party’s attorney) ‘that all essential parties have been served with process or have appeared.’ [CCP section 36(c)(1)].”
Weil & Brown, California Practice Guide, Civil Procedure Before Trial (The Rutter Group, 2024 rev.) Section 12:246.4.
The declaration makes no mention of service or appearance of essential parties. The file shows that there is only one named defendant, who has answered the complaint. However, there are Does named in the complaint, and the attorney has not confirmed that all essential parties are currently part of this proceeding.
Substantive
Plaintiff Abbas Jannat seeks an order granting a trial preference in this matter.
Relief is sought under CCP §36(a), under which:
“(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.”
CCP §36.5 provides that the motion may be supported by an affidavit by the party’s attorney “based upon information and belief” as to the party’s “medical diagnosis and prognosis.”
With respect to trial preference, under CCP section 36(f):
“Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and 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.”
With respect to the requirements for a preference order under CCP section 36, subdivision (a), the first requirement is that the moving party establish that the party is over 70 years of age.
Here, the moving papers fail to meet the initial burden of establishing that plaintiff is over the age of 70. The evidence submitted is a declaration of plaintiff’s attorney, who states, “Plaintiff is seventy-seven (77) years old,” and also states, “Plaintiff was born on May 9, 1947. Attached hereto as Exhibit 1 is a true and correct copy of relevant portions of his medical records demonstrating his age…” [Baharvar Decl., paras. 2, 3].
There is no indication that the attorney would have personal knowledge sufficient to authenticate the attached medical records, which would also be hearsay as to the date of birth, and plaintiff’s age or date of birth would also be matters of which the attorney declarant would have no personal knowledge.
Unlike the party’s medical condition, the party’s age is not a fact an attorney is authorized to testify to on information and belief, and avoid the hearsay rule. With such motions, the court ordinarily sees a declaration from the party, not the attorney, attesting to a date of birth, or authenticating a birth certificate or driver’s license.
Weil and Brown note that in connection with subdivision (a) motions, the age of a party is not a matter upon which at attorney is authorized to testify to on information and belief, and advise:
“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 and Brown, Cal. Practice Guide, Civ. Proc. Before Trial (The Rutter Group, 2024 rev.) § 12.247.3, italics in original.
The motion is denied on this ground.
With respect to the requirement that a party have a substantial interest in the action as a whole, it is clear that plaintiff is the only plaintiff in this action, which involves personal injuries to plaintiff himself, and it would appear to be undisputed that plaintiff has a substantial interest in the action as a whole.
With respect to whether plaintiff has established that his health is such that a preference is necessary to prevent prejudicing his interest in the litigation, the statute was amended in 1990 so that advanced age alone is not enough to give rise to preference. A party must now show that “[t]he health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” CCP § 36 (a)(2).
The decision to grant or deny a preferential trial setting under CCP § 36 “rests at all times in the sound discretion of the trial court in light of the totality of the circumstances.” Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 344.
As noted above, CCP §36.5 provides that the motion may be supported by an affidavit by the party’s attorney “based upon information and belief” as to the party’s “medical diagnosis and prognosis.”
The motion submits a declaration of counsel, which states that attached is a true and correct copy of relevant portions of plaintiff’s medical records demonstrating,
“the nature and extent of his injuries and damages to date. He sustained injuries to his head and shins. Specifically, Plaintiff suffers with neck pain which radiates to bilateral shoulders, back pain, pain in bilateral shins. Plaintiff continues to suffer from headaches, neck pain, back pain and shin pain, arising out of the accident.”
[Baharvar Decl., para. 3].
This declaration is not as clear as it could be in terms of stating a medical diagnosis or prognosis or the belief of plaintiff’s counsel based on the information and medical records counsel has evidently been provided by plaintiff. As pointed out in the opposition, there is no mention of any diagnosis or prognosis. It is not explained how these conditions would support a finding that plaintiff’s health is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. The memorandum merely draws this conclusion.
The motion seems to argue that where a health condition is raised, plaintiff is entitled to mandatory trial preference. For this point, plaintiff relies on case law which predates the amendment in 1990 adding the requirement of necessity to prevent prejudicing the party’s interest in the litigation. See, e.g. Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 692, relying on Rice v. Superior Court (1982) 136 Cal.App.3d 81.
The motion also relies on Fox v. Superior Court (2018) 21 Cal.App.5th 529, a post-1990 case, in which the court of appeal in response to a petition concerning a trial court order denying a motion for trial preference, reviewed the petition, opposition and supporting documentation, and issued a peremptory writ of mandate directing the respondent superior court to vacate its previous order and grant a new order setting the trial in the matter within 120 days of the court of appeal opinion. The attorney’s declaration in Fox described the elder in that case suffering, besides various cancers, asbestos related disease and severe coronary artery disease, what the attorney described as “‘chemo brain’ or a fogginess in thought process that impairs her ability to focus, concentrate and effectively communicate.” Fox, at 531.
The court of appeal appeared to set a liberal standard of proof under subdivision (a), observing that in the case before it there was no genuine dispute that the 81-year-old plaintiff Ms. Fox was “very sick,” and also emphasized,
“And critically, her mental state has deteriorated to a point where she becomes confused and forgetful. All told, the evidence shows that while Ms. Fox is currently able to participate in a trial, she has good reason for concern that will not be the case for much longer as her health deteriorates.”
Fox, at 535.
Plaintiff relies on Fox primarily for the argument that where a plaintiff establishes the conditions under section 36 (a), the trial court is not permitted to weigh the interests of the parties in connection with the preference determination.
The court of appeal in Fox did reject an argument by defendant that the trial court in that case properly had balanced plaintiffs’ interest in expedition against defendant’s interest in having an adequate time to prepare for trial, holding that no weighing of such interests is involved in the analysis under subdivision (a):
“Rather than engage directly with the language of section 36, Metalclad proposes to add a gloss. Citing Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 9 Cal.Rptr.3d 821 (Hernandez ), it suggests that, in applying subdivision (a), the trial court properly balanced the Foxes' interest in expedition against its interest in having adequate time to prepare for trial. Hernandez addressed the importance of reconciling the good cause standard for granting trial continuances with the competing policy obligation to comply with the Trial Delay Reduction Act. (Hernandez, at p. 1246, 9 Cal.Rptr.3d 821 [“decisions about whether to grant a continuance ... ‘must be made in an atmosphere of substantial justice. When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency.’ [Citation.] What is required is balance.”].) There is no clash of statutory policies here. Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted. No weighing of interests is involved.”
Fox, at 535.
This pronouncement is followed by a footnote, which suggests that the facts of that case did not support a due process argument, possibly suggesting such an argument may have some weight under different facts:
“Metalclad's “balancing of interests” argument is cast primarily as a matter of appropriate exercise of statutorily conferred discretion, but at one point it takes the argument a step further, suggesting that “[d]efendants' due process rights and fundamental fairness must also be given weight” in the balance. Suffice it to say the preference motion here, which was made eleven months into the case, seeking a trial date within 120 days of that, allowed plenty of time for discovery and trial preparation. The idea that due process concerns are in play is baseless.”
Fox, at 535, n. 3.
Here, the motion is made nine months into the case, over eight months after defendant first appeared, on a timeline not much shorter than in Fox. This case appears to be a straightforward vehicle negligence case, not one in which it would be difficult to conduct discovery and prepare for trial. Hence, the court will not take into account in its determination any due process arguments or prejudice urged in the opposition.
In any case, the question remains whether plaintiff here has sufficiently shown that the health of plaintiff is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. Plaintiff’s apparent argument that raising any health issue makes a preference order mandatory would render the showing of prejudice expressly required in the statute meaningless, and practically speaking entitle any personal injury plaintiff over the age of 70 to preference.
While the court of appeal in Fox cautioned that the statute does not require a showing at the level of impending death or incapacity, or likely unavailability for trial, ordinarily there is some explanation why a particular health condition or prognosis would prejudice the interest in the litigation. As noted, the plaintiff in Fox was suffering from multiple serious health conditions, including cancers, asbestos related disease, severe coronary artery disease, and a deteriorating mental state so that plaintiff had become confused and forgetful. Fox, at 531, 535.
Here, it is difficult to understand how the neck, shoulder, back and shin pain reported in the declaration would prejudice plaintiff in the pursuit of this action. [Baharvar Decl., para. 3].
A review of the attached medical records show that the most recent report submitted has a handwritten entry for 1/10/24, but is largely illegible, referring to some “fatigue,” and “sleep affected.” The most recent narrative report was printed December 29, 2023, with a “Clinical Date” listed of 12/18/2023, almost a year ago. This showing accordingly does not appear to reflect plaintiff’s current condition.
The report in the “Assessment” section states,
“76 year old male who presents after motor vehicle accident on 11/30/23. Current impression:
1. Wound infection (ICD10-L08.9)
2. Neck Pain (ICD10-M54.2)
In the “Recommendation and Plan” section, which can reasonably be construed as the diagnosis and prognosis information, the report states:
“Regarding his wounds, it does appear to be healing well at this time. He has been applying antibiotic ointment. There is some redness and warmth on the edges of the wound site. We will prescribe Keflex 500 mg BID for 14 days.
We will obtain hospital records and review imaging that was done and review with the patient. Advise patient if he starts forming any systemic symptoms like fevers to seek medical evaluation immediately. At this time, wound is healing well.”
[Ex. 1, p. 5].
The report also includes observations that plaintiff “denies” experiencing symptoms in most categories, including, “Neuro” as he “Denies headache, numbness, weakness, tremors, seizures, blackouts, trouble with memory and trouble concentrating.” [Ex. 1, p. 3]. With respect to the physical examination, the report in connection with “Psychiatric” states, “Alert and oriented to time, place and person. Recent and remote memory are intact. Mood and affect are normal.” [Ex. 1, p. 4].
The most recent report from over a year ago appears to show that plaintiff was healing from his knee wound injuries, and was experiencing pain in areas of his cervical spine. There is no indication how severe the cervical spine pain is now, or that plaintiff is debilitated or deteriorating in any way which raises a possibility that plaintiff’s interest in the litigation could be prejudiced by these conditions. His wounds were evidently healing well. There is no showing that such injuries, for example, could in some way affect plaintiff’s ability to meaningfully collect or provide evidence, or participate in the pre-trial proceedings or trial as time goes on.
Under the circumstances, plaintiff has failed to make the required showing that the health of plaintiff is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.
Defendant in the opposition argues that plaintiff has failed to meet this burden, and also argues that plaintiff in responses to form interrogatories has admitted that no health care provider has advised that plaintiff requires future or additional treatment. [Kandarian-Stein Declaration, para. 2]. Defendant also argues that plaintiff sat for deposition in July of 2024, and that the transcript of the deposition shows that plaintiff’s wounds have healed, that plaintiff does not currently experience mid back pain as a chiropractor has helped him, and that plaintiff is semi-retired but running businesses, and living an active life. [Kandarian-Stein Decl., paras. 4, 5]. Defendant purports to attach discovery responses and possibly the deposition transcript to the opposition papers, but there have been no exhibits filed with the court, so that the court cannot confirm the accuracy of the representations of counsel concerning those matters. The court also cannot confirm that the exhibits were served on plaintiff. The court accordingly has not considered the facts set forth in the opposition which have no support due to the failure to include the exhibits.
In any case, plaintiff’s motion is deficient on several grounds. Hence, it does not appear that plaintiff at this juncture can establish that his health is currently such that a preference is necessary to prevent prejudicing plaintiff’s interest in the litigation. The motion is denied. The motion is denied without prejudice to plaintiff seeking a preferential trial setting in the future if conditions change, and plaintiff can meet the statutory requirements.
RULING:
Plaintiff’s Motion for Trial Preference is DENIED, procedurally and on its merits.
The moving party has failed to submit a declaration indicating that all essential parties have been served with process or have appeared, as required under CCP § 36 (c)(1).
The moving party has failed to establish by appropriate evidence that plaintiff is over 70 years of age, as required under CCP § 36 (a).
The moving papers, including the declaration submitted with the moving papers and the attached medical records, fail to sufficiently establish that the health of plaintiff is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation, as required under CCP § 36 (a)(2).
The motion is denied without prejudice to plaintiff seeking a preferential trial setting in the future if conditions change, and plaintiff can meet the statutory requirements.
DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE
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