Judge Robert S. Draper, Case 22STCV20465 2022-09-21 Tentative Ruling

Judge: Robert S. Draper, Case: 22STCV20465, Date: 2022-09-21 Tentative Ruling

Case Number: 22STCV20465 Hearing Date: September 21, 2022 Dept: 78

Superior Court of California

County of Los Angeles

Department 78

rosa stephenson, Plaintiff; vs. Pomona healthcare & wellness center, llc, et al., Defendants.	Case No: 22STCV20465
	Hearing Date: September 21, 2022

	[TENTATIVE] RULING RE: Plaintiff rosa stephenson’s motion for trial preference

Plaintiff Rosa Stephenson’s Motion for Trial Preference is GRANTED. Trial will be set for a date to be determined at hearing.

FACTUAL BACKGROUND

This is an action for elder abuse. The Complaint alleges as follows.

Plaintiff Rosa Stephenson (“Plaintiff”) was a resident in Defendant Pomona Healthcare and Wellness Center, LLC (“Pomona Healthcare”). (Compl. ¶ 4.) Defendants Pomona Nursing & Healthcare Centre, LLC, Brius Management Co., and Rockport Administrative Services (together, “Management Defendants”) owned and/or operated Pomona Healthcare. (Compl. ¶ 5.)

The Management Defendants have acted in coordination to siphon Pomona Healthcare’s profits for the benefit of their owner, Shlomo Rechnitz. (Compl. ¶ 13.) Additionally, Pomona Healthcare regularly receives vastly more complaints and reported incidents than comparable facilities. (Compl. ¶ 14.)

Defendants, who were responsible for Plaintiff’s care, neglected her health and well-being. (Compl. ¶ 29.) As a result, Plaintiff developed severe bed sores that accelerated the deterioration of her health. (Compl. ¶ 30.) When discovered, Defendants failed to take necessary measures to remedy these bed sores. (Compl. ¶ 43.)

PROCEDURAL HISTORY

On June 22, 2022, Plaintiff filed the Complaint asserting two causes of action:

1. Elder Abuse; and

2. Negligent Hiring and Supervision

On August 15, 2022, Defendants Pomona Healthcare & Wellness Center, LLC; Pacific Healthcare Holdings, Inc. (erroneously sues as Brius Management Co.); and Rockport Administrative Services, LLC (together “Respondents”) filed an Answer.

Also on August 15, 2022, Plaintiff filed the instant Motion for Trial Preference.

On August 29, 2022, Respondents filed an Opposition.

On August 30, 2022, Plaintiff dismissed Defendant Pomona Nursing & Healthcare Center, LLC.

On September 14, 2022, Plaintiff filed a Reply.

DISCUSSION

I. MOTION FOR TRIAL PREFERENCE

Plaintiff moves for an order specially setting the action for trial pursuant to California Code of Civil Procedure section 36(a) or (e) on the grounds that Plaintiff Rosa Stephenson is entitled to statutory priority because she is over the age of 70 and her health is such that preference is necessary to prevent prejudicing her interest in the litigation.

“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(a).)¿¿“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. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36.”¿ (Code Civ. Proc., § 36.5.)¿¿

“Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.” (Code of Civ. Proc. § 36(e).)

Here, Plaintiff provide a declaration from Shahab Attarchi, M.D. (“Dr. Attarchi”) to support her motion. Dr. Attarchi states that Plaintiff is a 79-year-old woman with a medical history of dementia, stroke with right sided weakness, respiratory failure status post trach and vent, quadriplegia, seizures, type two diabetes mellites, hypertension, pneumonia, end stage renal disease (ESRD) on dialysis, and multiple decubitus ulcers, including a sacral Stage IV wound, a right buttocks Stage IV wound, and a left buttocks State II wound. (Attarchi Decl. ¶ 8.) Dr. Attarchi states that Plaintiffs suffers from health conditions such that there exists substantial medical doubt of Plaintiff’s survival beyond six months. (Attarchi Decl. ¶ 6.)

In Opposition, Respondents make three arguments.

First, Respondents argue that Plaintiff has failed to serve all Defendants and has failed to submit a declaration stating that all essential parties have been served, as required by Code of Civil Procedure § 36(c)(1).

However, Plaintiff’s Attorney, Robert M. Partain, submitted a declaration with the motion stating that “[a]ll essential parties to this matter have been served and/or appeared prior to the hearing on this Motion.” (Partain Decl. § 2.) Additionally, the party who had not been served, Pomona Nursing & Healthcare Center, LLC, was dismissed prior to the instant hearing, rendering that argument moot.

Second, Respondents argue that Plaintiff did not provide any admissible evidence demonstrating that Plaintiff was over 70-years-old. However, attached to Dr. Attarchi’s Declaration are Plaintiff’s Medical Records stating that she is 79 years old. (Attarchi Decl., Ex. 2 at p. 2.)

Third, Respondents argue that the Declaration of Dr. Attarchi is insufficient to demonstrate that Plaintiff’s health “is such that a preference is necessary to prevent prejudicing the party’s interest in litigation.” Respondents argue that Dr. Attarchi is not Plaintiff’s primary care physician and is a “known paid professional consultant.” (Motion at p. 5.)

However, section 36 requires only that the moving party provide “[a]n affidavit submitted in support . . . 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.) Plaintiff far exceeds this statutory requirement by providing the declaration of a medical doctor as to Plaintiff’s health, as well as the medical records on which he bases his diagnosis. That the Doctor is a “known paid professional consultant” is utterly irrelevant to the present discussion.

Finally, Respondents argue that the Court should deny the instant motion due to the prejudice it would cause them, as they would not have adequate time to prepare and file a Motion for Summary Judgment pursuant to Code of Civil Procedure section 437.

However, “[t]he trial court has no power to balance the differing interests of opposing litigants in applying [CCP § 36]. The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations.”¿ (Swaithes v. Superior Court¿(1989) 212 Cal.App.3d 1082, 1085-86.¿¿See¿also¿Vinokur v. Superior Court¿(1988) 198 Cal.App.3d 500, 503 (“[T]here can be no inroads into the mandate of section 36.”)¿ Additionally, on Reply Plaintiff states that she will stipulate to hearing said motion up to the date of trial, rendering Respondent’s argument moot.

Accordingly, Plaintiff’s Motion for Trial Preference is GRANTED. Trial date will be set at hearing.

DATED: September 21, 2022