Judge Ronald F. Frank, Case Number: 23TRCV01712, Date: 2023-11-14 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV01712, Date: 2023-11-14 Tentative Ruling

Case Number: 23TRCV01712 Hearing Date: November 14, 2023 Dept: 8

Tentative Ruling

HEARING DATE: November 14, 2023

CASE NUMBER: 23TRCV01712

CASE NAME: Donna Lee Scoular v. Earl Mendes Hyman, et al.

MOVING PARTY: Plaintiff, Donna Lee Scoular

RESPONDING PARTY: Defendant, Earl Mendes Hyman

TRIAL DATE: Not Set.

MOTION: (1) Motion for Trial Preference

Tentative Rulings: (1) Plaintiff’s Motion for Trial Preference is GRANTED. Trial to be set in late March or early April depending on trial counsel’s schedules

I. BACKGROUND

A. Factual

On May 30, 2023, Plaintiff, Donna Lee Scoular (“Plaintiff”) filed a Complaint against Defendant, Earl Mendes Hyman (“Defendant”), and DOES 1 through 50. The Complaint alleges a cause of action for negligence. The Complaint contends that on July 19, 2021, Plaintiff was injured in a motor vehicle collision in Redondo Beach, California. Plaintiff is also currently 79 years old.

Plaintiff has now filed a Motion for Trial Preference.

B. Procedural

On October 18, 2023, Plaintiff filed a Motion for an Order Granting Preference in Setting Case for Trial. On October 30, 2023, Defendant filed an opposition. On November 6, 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.) Section 36 subdivision (d), by contrast, provides that, regardless of the age of the party involved, “[i]n its discretion, the court may ... grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.” (Italics added.)

“On petition of any party over age 70, section 36, subdivision (a), provides that the granting of calendar preference is mandatory in some circumstances.” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 533.) In Fox, the First District reversed the trial court’s denial of the preference motion brought by an 81-year-old plaintiff. Although the trial court in Fox did not post a tentative to indicate its reasoning, the record suggested to the appellate court that the trial court there mistakenly applied the heightened clear and convincing proof standard for motions seeking discretionary grants of preference under subdivision (d), or because it required a physician declaration, which are not the standards for mandatory preference motions under subdivision (a). In ruling on a Section 36(a) motion, the Second District noted that a “trial court has no power to balance the differing interests of opposing litigants in applying the provision. 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, 1085–1086.)

“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.)

B. Discussion

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. The plaintiff has provided such a proof of service.

There is no dispute in the parties’ moving or opposing papers as to the age of the Plaintiff or her medical condition and health. Instead, Defendant’s opposition argues that Plaintiff’s moving papers do not comply with Code of Civil Procedure § 36(a) as they do not contend that Donna Scoular’s health is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. The Court disagrees. Jonathan Davidi’s declaration indicates that Mrs. Scoular has a substantial interest in this case and as sustained severe injuries which will require future medical care and has suffered and will continue to suffer emotional distress and mental suffering as a result of her injuries related to this incident. Defendant contends that is not sufficient for mandatory trial preference. The Court notes that based on the exhibits attached, Mrs. Scoular is planning to have shoulder replacement surgery on November 14, 2023, the date of the hearing on this motion. That is a major operation even in a person who has not yet

attained Medicare age, much less one nearing their eighth decade. If by way of opposition Defendant had “submitted, say, a photograph of [Plaintiff] scuba-diving in the Galapagos Islands just last fall, there might be some basis to expect more medical detail, but on this record we see no genuine dispute” that Plaintiff has a serious medical condition. (Fox, supra, 21 Cal.App.5th at p. 535.” Mr. Davidi’s uncontested declaration provides facts from which the Court can infer the conclusion that Plaintiff’s health is such that a preference is necessary to prevent prejudicing her interest in this litigation. While the declaration could have been more compelling such as the declaration of the plaintiff’s asbestosis, breathing issues, and lung cancer with metastases as in Fox, the Court finds the Davidi declaration sufficient to establish both of the required elements of subdivision (a).

The Opposition also argues that plaintiff’s counsel has not been exceptionally diligent in pressing forward with a trial date, arguing that there is no urgency in setting the trial of a 79-year-old who is about to undergo surgery given the 22-month delay in filing suit and the delay in making this motion on ordinary notice rather than ex parte application. The Court’s review of published decisions makes these arguments irrelevant. The statute specifically provides the motion can be made at any time, not within weeks of defendant’s answer being filed. In the Court’s view, the decision to see if the case could be resolved without suit, and the decision to wait to file the preference motion until discovery had been commenced and key depositions scheduled, were decisions that benefit both sides in having a reasonable opportunity to develop the litigation and adequately prepare for a trial four months out.

The Court acknowledges that trial calendars in I/C courts are congested and that trial settings are being pressed back in time as compared to pre-COVID times. But where the Legislature has given clear policy directives to give trial preference to, for example, UD cases and cases involving older parties with health issues, the trial courts have a responsibility to administer those directives even if it may be inconvenient for counsel and the court itself.

Based on this, the Motion for Trial Preference is GRANTED. At the hearing the Court will discuss its calendar in March of 2024 and seek to find a date that does not conflict with trial counsel’s schedules.