Judge: Robert B. Broadbelt, Case: 22STCV27609, Date: 2023-01-23 Tentative Ruling

Case Number: 22STCV27609    Hearing Date: January 23, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Plaintiff Mansoureh Aghayan

RESPONDING PARTY:       Defendant Beverly Hills Rehabilitation Centre, LLC[1]

Motion for Trial Preference

The court considered the moving, opposition, and reply papers filed in connection with this motion.

EVIDENTIARY OBJECTIONS

The court overrules the evidentiary objections filed by defendant Beverly Hills Rehabilitation Centre, LLC on January 9, 2023.  An affidavit submitted in support of a motion for preference under Code of Civil Procedure section 36, subdivision (a) may be signed by the party’s attorney based upon information and belief as to the medical diagnosis and prognosis of any party.  (Code Civ. Proc., § 36.5.)

Background

Plaintiff Mansoureh Aghayan (“Plaintiff”) filed this action against defendants Beverly Hills Rehabilitation Centre, LLC and The Rehabilitation Centre of Beverly Hills on August 24, 2022, alleging three causes of action for (1) negligence, (2) failure to render aid, and (3) elder abuse (neglect).

Plaintiff now moves the court for an order granting trial preference pursuant to Code of Civil Procedure section 36, subdivision (a).

DISCUSSION

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, and (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).)  “Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted.  No weighing of interests is involved.”  (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535; see also Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 692 [if the court makes these findings, trial preference is mandatory -- the court lacks discretion to deny the relief].)  Upon the granting of a motion for trial preference, “the court shall set the matter for trial not more than 120 days from that date . . . .”  (Code Civ. Proc., § 36, subd. (f).)

The court finds that Plaintiff has not met her burden to establish that her health is such that “a preference is necessary to prevent prejudicing [Plaintiff’s] interest in the litigation” and therefore denies Plaintiff’s motion.  (Code Civ. Proc., § 36, subd. (a)(2).)

First, the court finds that Plaintiff has established that she is over 70 years of age and has a substantial interest in the action as a whole.  (Saidian Decl., ¶ 3; Code Civ. Proc., § 36, subd. (a)(1).) 

Second, the court finds that Plaintiff has not established that her health is such that a preference is necessary to prevent prejudicing her interest in the litigation. 

Plaintiff presents evidence establishing that she (1) has “a history of hypertension, hyperlipidemia, hypertensive cardio-vascular issues, chondrocalcinosis, gait disorder, dyslipidemia, weak legs, hyperthyroidism, and subacute cerebellar infarction[,]” and (2) “had cellulitis, a compression fracture, osteoarthritis, and a right knee effusion.”  (Saidian Decl., ¶ 4.) 

The court finds that this evidence is insufficient to establish that Plaintiff’s health is such that a preference is necessary to prevent prejudicing her interest in this action.  Plaintiff does not appear to assert that she currently suffers from these conditions, and has only presented evidence that she “has…a history of” and “had” the ailments described above.  (Saidian Decl., ¶ 4.)  While it is not necessary to establish that Plaintiff “might die before trial or become so disabled that she might as well be absent when trial is called[,]” in order to obtain a preference, Plaintiff must establish that her health is such that a preference is necessary to prevent prejudicing her interest in this action.  (Fox, supra, 21 Cal.App.5th at p. 534; Code Civ. Proc., § 36, subd. (a)(2).)  Plaintiff has not presented evidence establishing that her medical history and/or current medical conditions are such that a preference is necessary to prevent prejudicing her interest in this action.

Thus, although the court acknowledges that Plaintiff is 98 years old and the court takes seriously and is sympathetic to the fact that Plaintiff has a history of suffering from a number of physical conditions, Plaintiff has not met her burden of showing that these health conditions are such that a preference is necessary to prevent prejudicing Plaintiff’s interest in the litigation, as required by section 36, subdivision (a). 

Based on the evidence presented, the court finds that Plaintiff is over 70 years of age and has a substantial interest in the action as a whole.  (Code Civ. Proc., § 36, subd. (a)(1); Saidian Decl., ¶ 3.)  However, the court finds that Plaintiff has not met her burden of establishing that her health is such that preference is necessary to prevent prejudicing Plaintiff’s interest in the litigation.  (Code Civ. Proc., § 36, subd. (a)(2).)

ORDER

The court denies plaintiff Mansoureh Aghayan’s motion for trial preference.

The court orders defendant Beverly Hills Rehabilitation Centre, LLC to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 23, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court