Judge Ronald F. Frank, Case Number: 22TRCV01569, Date: 2023-08-14 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV01569, Date: 2023-08-14 Tentative Ruling

Case Number: 22TRCV01569 Hearing Date: August 28, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: August 28, 2023¿¿

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CASE NUMBER: 22TRCV01569

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CASE NAME: Shirley Ogle v. Wo Choi, et al.

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MOVING PARTY: Plaintiff, Shirley Ogle

RESPONDING PARTY: Defendant, Wo Choi

TRIAL DATE: September 9, 2024

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MOTION:¿ (1) Motion for Trial Preference

Tentative Rulings: (1) Plaintiff’s Motion for Trial Preference is GRANTED. At oral argument the Court will discuss trial setting in December of 2023 and a possible case management order to modify the usual time periods under the Discovery Act including the time for demand and exchange of experts. The Court will continue the trial into 2024 on proof in a later motion that she is not making herself available for deposition or IME

I. BACKGROUND¿¿

A. Factual¿¿

On December 21, 2022, Plaintiff, Shirley Ogle (“Plaintiff”) filed a Complaint against Defendant, Wo Choi (“Defendant”), and DOES 1 through 25. The Complaint alleges causes of action for: (1) Motor Vehicle Negligence; and (2) General negligence. Plaintiff alleges she was driving westbound on 19^th Street, just west of the intersection with Prairie Avenue in Torrance, CA, while Defendant attempted to exit Colombia Park southbound by making a left-hand turn onto eastbound 190^th Street when Plaintiff had the right-of-way. Plaintiff alleges that Defendant negligently operated his vehicle, including but not limited to driving in violation of CCP Vehicle Code § 21801 in his failure to yield to Plaintiff’s vehicle while making the left-hand turn.

Plaintiff has now filed a Motion for Trial Preference.

B. Procedural¿¿

On July 26, 2023, Plaintiff filed a Motion for Trial Preference. On the Court’s own motion, it continued this hearing from August 14, 2023 to August 28, 2023 to enael the defense to file written opposition. On August 15, 2023, Defendant filed an opposition. On August 17, 2023, Plaintiff filed a reply brief.

II. ANALYSIS¿

A. Legal Standard

A party who is over 70 years old may petition the court for a preferential trial setting 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).) 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. (Code Civ. Proc., § 36.5.)

The court has discretion to grant a motion for trial preference accompanied by clear and convincing medical documentation concluding that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months and satisfying the court that the interests of justice will be served by granting the preference. (Code Civ. Proc., § 36, subd. (d).)

“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.” (Id., § 36, subd. (f).) “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.)

As a preliminary matter, section 36, subdivision (c) requires the moving party to serve a declaration stating all essential parties have been served with process or have appeared. Plaintiff has provided such a proof of service.

B. Discussion

Plaintiff, Shirley Ogle, provided proof of her satisfaction of the criteria under Section 36, including the fact that she is 83 years old. (Declaration of Shirley Ogle (“Ogle Decl.”), ¶ 2.) At the time of the collision, she was 81. She states that she suffers from hypertension and chronic and debilitating pain. Plaintiff contends that she is in chronic pain interferes with her ability to function on a daily basis. Plaintiff’s motion notes that she finds even the most mundane of tasks like grocery shopping, household chores or simply getting out of bed to be nearly insurmountable given her level of pain. (Ogle Decl., ¶ 4.) Plaintiff submits that she has also experienced a significant diminishment tin her quality of life. For example, Plaintiff notes that prior to the incident, she would regularly exercise and participate in other social activities, but no has days where she can only muster the strength to bathe herself. (Ogle Decl., ¶ 4.) Plaintiff further notes that among other items, doctors have assessed her with abnormal and elevated vital signs including hypertension, left sided neck pain radiating into her shoulder, cervical and lumbar spondylosis and radiculitis causing severe back and neck pain. (Ritter Decl., ¶ 3.) Plaintiff notes that she has been under doctor’s care for her injuries since the incident, and that her treatment includes transforaminal injection, mild physical therapy for neck and lower back, and various pain medication. She also received bilateral facet injections. (Ritter Decl., ¶ 4.) The motion also clarifies that Plaintiff is in cognitive decline. Plaintiff notes that while she currently can participate with the litigation of her case, with every day, her ability to communicate, focus, read and to be as responsive to the demands of litigation diminishes. (Ogle Decl., ¶ 6.)

In opposition, Defendant argues that there is no meaningful evidence that her health has deteriorated to the point that she cannot participate in this litigation, and that her subjective complaints of pain and health related issues, mostly related to the accident, do not distinguish her from any other injured plaintiff. Defendant also contends that she makes no claim that she is suffering any medical diagnosis or prognosis that raises a “substantial medical doubt of survival of that party beyond six months.” (Code of Civil Procedure § 36(d).)

Defendant also argues that this motion is premature, noting that Plaintiff filed her motion immediately after failing to appear for a deposition (Cox Decl., ¶¶ 6-7.) Defendant notes that to date, Plaintiff’s deposition has not been held, and there is a chance it will be delayed further by Plaintiff. (Cox Decl., ¶ 7.) Defendant notes that after the deposition, he will require Plaintiff to submit at least one IME, and that it is very likely discovery will not be completed within the window for trial preference. (Cox Decl., ¶ 8.)

Defendant suggests that he will be burdened if trial preference is granted now, and suggests that rather than granting it the Court should deny it without prejudice, or continue the motion to a later date, and closely monitor the case for progress.

In Plaintiff’s reply brief, she notes that her deposition is set for October 16, 2023, her responses to discovery were served on June 22, 2023, and Defendant’s responses to discovery are currently due on August 21, 2023 after the granting of a second extension. Plaintiff further asserts that Defendant has not set an IME. Lastly, Plaintiff notes that should defendant require additional time before trial, defect can apply to the Court and establish good cause for doing so.

The Court will allow oral argument as to discovery timeline, however, the Court’s tentative ruling is to GRANT Plaintiff’s motion. The Court finds that Plaintiff has demonstrated her substantial interest in the action as a whole, that a trial preference is necessary to prevent prejudicing the party’s interest in the litigation, and that given her age and health, Plaintiff’s conditions are likely to continue to decline. As such, this Court GRANTS Plaintiff’s Motion for Trial Preference.