Judge: Salvatore Sirna, Case: 23PSCV02745, Date: 2023-11-13 Tentative Ruling

Case Number: 23PSCV02745    Hearing Date: December 8, 2023    Dept: G

Plaintiff Gregory Allen French’s Motion for Trial Preference

Respondent: Defendant Southern California Specialty Care, LLC

TENTATIVE RULING

Plaintiff Gregory Allen French’s Motion for Trial Preference is GRANTED

BACKGROUND

This is an action for elder abuse. Defendant Southern California Specialty Care, LLC is an acute care hospital that operates in West Covina under the name Kindred Hospital – San Gabriel Valley (Kindred SGV). In July 2022, Kindred SGV admitted Plaintiff Gregory Allen French after French had suffered a stroke. During French’s sixty day stay at Kindred SGV, French alleges French developed a stage four pressure ulcer on the sacral/coccyx area of French’s body.

On September 7, 2023, French filed a complaint against Kindred SGV and Does 1-250, alleging a single cause of action for elder abuse.

On October 5, 2023, French filed the present motion. A hearing on the motion and an informal discovery conference are set for December 8 with a case management conference on February 8, 2024.

ANALYSIS

French moves for a court order specially setting the present action for trial pursuant to Code of Civil Procedure section 36. For the following reasons, the court GRANTS French’s motion.

Legal Standard

Code of Civil Procedure section 36 establishes four grounds upon which trial preference can be obtained. First, the court must grant a motion for preference in a civil action when it is brought by a party who is over seventy years of age, has a substantial interest in the action, and has health issues that require preference “to prevent prejudicing the party’s interest in the litigation.” (Code Civ. Proc., § 39, subd. (a).)

Second, “[a] civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under 14 years of age unless the court finds that the party does not have a substantial interest in the case as a whole.” (Code Civ. Proc., § 36, subd. (b).)

Third, “[i]n its discretion, the court may also 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.” (Code Civ. Proc., § 36, subd. (d).) Fourth and last, “[n]otwithstanding 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 Civ. Proc., § 36, subd. (e).)

Discussion

In this case, French argues for trial preference pursuant to Code of Civil Procedure section 36, subdivision (d). In support of French’s motion, French relies on the declaration of Shahab Attarchi, M.D. In that declaration, Dr. Attarchi opines that French’s medical conditions have led to the rapid deterioration of French’s health and that there is “substantial medical doubt that [French] has more than six months to live.” (Dr. Attarchi Decl., ¶ 6.) Dr. Attarchi bases this opinion on the fact that French has been receiving long term antibiotic treatment for a spinal infection and opines that this long-term use of antibiotics will make it difficult for physicians to treat future infections. (Dr. Attarchi Decl., ¶ 8.) Dr. Attarchi also notes that French’s use of a Foley catheter creates a high risk of urinary tract infections and that any infection places French at high risk of sepsis and death. (Dr. Attarchi Decl., ¶ 8.) Additionally, Dr. Attarchi notes French is at a high risk of death due to poorly managed type II diabetes, a history of pulmonary embolism, morbid obesity, and vascular disease that could result in fatal blood clots. (Dr. Attarchi Decl., ¶ 8.)

In opposition, Kindred SGV argues Dr. Attarchi failed to provide reasoned explanations for this opinion because Dr. Attarchi does not discuss French’s receipt of or response to medical treatments for these health issues. In a supplemental declaration filed at the request of the court, Dr. Attarchi provides more detail.

Dr. Attarchi states French is suffering from a stage four sacral decubitus ulcer that is not responding well to treatment and is getting worse overtime. (Dr. Attarchi Suppl. Decl., ¶ 15.) Dr. Attarchi notes French’s ulcer puts French at a high risk of developing a life-threatening infection due to French’s long-term antibiotics use. (Dr. Attarchi Suppl. Decl., ¶ 15.) Dr. Attarchi also states French is currently experiencing osteomyelitis, which is a bone infection. (Dr. Attarchi Suppl. Decl., ¶ 18.) While French is receiving antibiotic treatment for this condition, Dr. Attarchi states there is no evidence French is positively responding to the treatment and that it is likely to spread. (Dr. Attarchi Suppl. Decl., ¶ 18.) Ultimately, Dr. Attarchi concludes that the cumulative effects of French’s medical conditions give French a very poor medical prognosis and lead to substantial medical doubt regarding whether French has more than six months to live. (Dr. Attarchi Suppl. Decl., ¶ 19.)

Based on Dr. Attarchi’s original and supplemental declarations, the court finds French established substantial medical doubt regarding French’s survival beyond the next six months. Accordingly, the court GRANTS French’s motion.

CONCLUSION

Based on the foregoing, French’s motion for trial preference is GRANTED.

The court will set a trial date and a final status conference date at the hearing.