Judge: Ronald F. Frank, Case: 23TRCV01492, Date: 2023-12-18 Tentative Ruling
Case Number: 23TRCV01492 Hearing Date: December 18, 2023 Dept: 8
Tentative Ruling¿
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HEARING
DATE: December 18,
2023¿¿
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CASE
NUMBER: 23TRCV01492
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CASE NAME: Robert
Belvins v. Southland Laundry Works, Inc., et al.
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MOVING
PARTY: Plaintiff, Robert
Belvins
RESPONDING
PARTY: Defendants, Southland Laundry
Works, Inc., et al.
TRIAL
DATE: Not Set.
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MOTION:¿
(1) Motion
for Trial Preference
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Tentative
Rulings: (1) GRANTED.
Trial will be set in April 2024 unless Plaintiff is willing to accept a
slightly later date
I.
BACKGROUND¿¿
A. Factual¿¿
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On May 11, 2023, Plaintiff, Robert Blevins
(“Plaintiff”) filed a Complaint against Defendant, Southland Laundry Works,
Inc., Gulf Alliance, LLC, Stephen Cohen, and DOES 1 through 20 (“Defendant”).
The Complaint alleges a cause of action for: (1) Negligence; and (2) Premises
Liability. The Complaint contends that on May 7, 2022, while Plaintiff was
lawfully on Defendants premises as a laundry customer, he tripped and fell
because of a dangerous condition on the premises, which Defendants allegedly should
have known existed on or about the floor, causing injuries to Plaintiff.
Plaintiff is also currently 79 years old.
Plaintiff has now filed a Motion for
Trial Preference.
B. Procedural¿¿
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On November 17, 2023, Plaintiff filed a Motion for an
Order Granting Preference in Setting Case for Trial. On December 5, 2023,
Defendant Southland Laundry Works, Inc. and Stephen Cohen filed an opposition.
On December 5, 2023, Defendant Gulf Alliance, LLC filed a joinder in opposition
to Plaintiff’s motion. On December 11, 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 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).) 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
Here, Plaintiff, Robert
Blevins, is 79 years old. (Declaration of Robert Blevins (“Blevins Decl.”), ¶
1.) Blevins notes that his medical condition is fragile and very precarious as
he has been diagnosed with atherosclerosis of the aorta, right vertebral artery
stenosis, elevated blood pressure, and prediabetes. (Blevins Decl., ¶ 2,
Exhibit 1.) With respect to the atherosclerosis of the aorta, Blevins notes
that he is at an increased risk of heart attack and stroke and Blevins requires
active surveillance by his physician to monitor his condition. (Declaration of
Antil Date, MD (“Dr. Date Decl.”), ¶ 4.) Additionally, with respect to his
right vertebral artery stenosis, Blevins is at a substantial risk of not having
enough oxygen reach his brain because the vertebral and basilar arteries at the
base of his brain have been blocked (Dr. Date Decl., ¶ 5.) It is further noted
that Blevins has been under active surveillance by his physician for this
condition as well. Dr. Date, Blevins treating physician, has submitted that
there is a substantial likelihood that Blevins may not survive for an extended
period of time. (Dr. Date Decl., ¶ 2.)
No expert opinion is offered, however, that Plaintiff is at substantial
risk of passing before the Summer of 2025 by which time this case would otherwise
be set for trial were the Court to deny this motion. There is no medical evidence before the Court
that in the next 18 months he is scheduled for a bypass operation, angioplasty
or angiogram, or even that his atherosclerosis has caused any impact on his ability
to assist his lawyers in preparing his case for trial. Being under risk of oxygen deprivation is
also untethered to any time period or substantial likelihood of any specific consequence
(e.g., TIA, stroke, etc.) where any specific prejudice to Plaintiff’s pursuit
of this litigation will occur.
In
the moving papers, Blevins notes his
substantial interest in this case. He alleges that he has significant claims
against the Defendant for personal injury which resulted from a dangerous
condition, that his personal injury causes of action do not survive his death,
and that his heirs would not be able to carry on a suit against Defendants for
wrongful death as his alleged injuries from Defendants’ premises did not cause
his death. The Opposition argues that Plaintiff’s medical conditions are of
long standing, are stable and being treated, and that there are no indications
that any of these chronic conditions affect Plaintiff’s ability to function,
attend to his normal daily activities, or would inhibit Plaintiff’s ability to
assist his lawyers or otherwise prejudice his ability to pursue this civil
case. The Opposition contrasts Plaintiff’s
circumstances with those in Fox v. Superior Court (2018) 21 Cal.5th
529. Fox presented a rather
extreme factual showing of multiple, advance medical conditions including Stage
IV cancer and active treatment with a regimen of chemotherapy, in sharp contrast
to the instant plaintiff who suffers from no urgent or immediately compelling
conditions. However, the Court notes
that in Exhibit E to the Opposition, the neurological consultation includes the
fact that Plaintiff reported a failing short-term memory which has worsened
since the subject incident, and that his activity level has diminished from
exercise 5 times per week to 3 times per week.
The Opposition also cites several trial court decisions where trial
court have denied preferential trial motions, which of course are not binding
on the Court nor are they very persuasive given the uniqueness of facts
presented by such motions in trial courts.
Further, the Opposition provides evidence of the report of sub rosa
surveillance tending to show that Plaintiff’s claims of significant ongoing
harm from the slip and fall are exaggerated.
In the Court’s
view, Section 36(a) presents a legislative determination that person over the age
of 70 who have medical conditions that impact their ability to prepare for and participate
in litigation are entitled to earlier trial dates than most other civil
litigants. The Court notes that Defendants
have been actively investigating and conducting discovery so as to ready this case
for early evaluation and trial. The effect
of this incident on Plaintiff’s short-term memory per the neurological
consultation is concerning to the Court given the commonly occurring fact of
declining memory with advancing of age, which would be an age-related prejudice
to Plaintiff’s ability to prosecute his case.
As such, this Court finds, despite Defendants’ opposition, that
Plaintiff’s moving papers satisfy the requirements of Code of Civil Procedure §
36 (a).
III.
CONCLUSION¿¿
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For the foregoing reasons, Plaintiff’s Motion for
Trial Preference is GRANTED. The Court
will discuss a mutually convenient trial setting date in early April of 2024,
and the Court will give notice of a TSC and trial date.¿¿¿¿
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