Judge: Ronald F. Frank, Case: 24TRCV01755, Date: 2024-09-05 Tentative Ruling

Case Number: 24TRCV01755    Hearing Date: September 5, 2024    Dept: 8

Tentative Ruling 

HEARING DATE:                 September 5, 2024

CASE NUMBER:                  24TRCV01755

CASE NAME:                        Paul Kaufman, Jr.; Lois Kaufman v. Martinez Landscape Co., Inc., et al.

MOVING PARTY:                Plaintiffs, Paul Kaufman, Jr. and Lois Kaufman

RESPONDING PARTY:       Defendant, Martinez Landscape Company, Inc.

TRIAL DATE:                        Not Set.  

MOTION:                              (1) Motion for Trial Preference

Tentative Rulings:                  (1)  GRANTED. Tentatively Jan. 6, 2025 as the trial date. The Court will consider scheduling orders to adjust various deadlines to facilitate time to prepare, discover, mediate, etc. 

I. BACKGROUND  

A. Factual 

On May 23, 2024, Plaintiffs, Paul Kaufman, Jr. and Lois Kaufman filed a complaint against Defendant, Martinez Landscape Co., Inc., and DOES 1 through 20. The complaint alleges causes of action for: (1) Negligence; (2) Negligence Per Se; and (3) Loss of Consortium based on Negligence and Negligence Per Se. The complaint is based on the Plaintiffs’ allegation that on March 22, 2024, Plaintiff, Paul Kaufman, Jr. was a pedestrian standing in front of his home when Defendants, through their employee, Guillermo Castillo-Batres carelessly and negligently drove, operated, maintained and owned the 2016 Peterbilt, so as to cause it to strike Plaintiff, Paul Kaufman, Jr., which forced said plaintiff to fall violently to the ground, which then cause said Plaintiff’s body to be dragged along the ground until his body finally became disengaged from the 2016 Peterbilt, resulting in catastrophic injuries to Plaintiff, Paul Kaufman, Jr.. (Complaint, ¶¶ 4-5.)

Now, Plaintiffs have filed a Motion for Order Granting Preferential Trial Setting.

B. Procedural 

On August 6, 2024, Plaintiffs filed a Motion for Trial Preference. On August 21, 2024, Defendant filed an opposition brief. On August 27, 2024, Plaintiffs 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. Counsel for Plaintiffs, Roger P. Tomalas filed a declaration (“Tomalas Decl.”). The declaration notes that Defendant Martinez’s attorney accepted service of the complaint, filed an answer, that extensive discovery has been propounded between the parties, and that each party has already fully responded to the written discovery. (Tomalas Decl., ¶ 7.) Defendant’s opposition argues that the declaration does not clearly state that each party has been served with process or have appeared. However, the Court finds that nothing in the record indicates that other parties, besides Martinez, are essential parties, and that Tomalas’ original declaration, filed concurrently with the moving papers, sufficiently establishes that Martinez has been served with process and has appeared in this case. (Tomalas Decl., ¶ 7.)

B.     Discussion

Here, Plaintiff, Paul Kaufman Jr. is 75 years old. From the accident that is the basis for their lawsuit, Plaintiff, Paul Kaufman Jr. suffered: (1) cervical fracture; (2) tracheostomy; (3) left pelvic fracture that required surgery; (4) left leg fracture that required surgery; (5) ruptured bladder that required surgery; (6) multiple vertebral fractures that required surgery; (7) lumbar fracture that required surgery; (8) amputation of the toes on his right foot and a portion of his right foot; and (9) placement of a gastronomy tube. (Tomalas Decl., ¶ 8(a)-(i).) Further, after being admitted to the hospital, Tomalas notes that Mr. Kaufman was diagnosed with stage IV lung cancer, that has metastasized to his liver. (Tomalas Decl., ¶ 9.) Because of this, Plaintiffs note that Paul Kaufman Jr. has been being followed by an oncologist, and is receiving oncological treatment in the form of medication. (Tomalas Decl., ¶ 9.) Further, Tomalas filed a supplemental declaration (Tomalas Second Supp. Decl.) with the reply brief which includes a copy of an email dated August 6, 2024 that was sent to him by William Tarng, M.D., to which Dr. Tarng’s four (4) page medical-legal report is attached as Exhibit 1A. (Tomalas Second Supp. Decl., ¶ 2.)

            Plaintiffs highlight that Mr. Kaufman Jr. has a substantial interest in this case, sustained catastrophic injuries in the injury producing event and was subsequently diagnosed with a potentially life-threatening health condition. The Court finds that Plaintiff Paul Kaufman Jr. clearly has a substantial interest in the action as a whole, and that his health and age are such the preference is reasonably necessary to prevent prejudicing his interest in the litigation. Given his age and health, his conditions are likely to either remain stable or decline. Thus, this Court finds good cause to GRANT this motion.

III. CONCLUSION 

For the foregoing reasons, Plaintiffs’ Motion for Trial Preference is GRANTED. 

Plaintiffs are ordered to give notice.