Judge: Stephen I. Goorvitch, Case: 22STCV12541, Date: 2022-09-26 Tentative Ruling

Case Number: 22STCV12541    Hearing Date: September 26, 2022    Dept: 39

Connie Hawthorne v. Shlomo Rechnitz, et al.

Case No. 22STCV12541

Motion for Preference

Plaintiff Connie Hawthorne (“Plaintiff”) filed this action against Shlomo Rechnitz, RRT Enterprises L.P. (“RRT”), and Rockport Administrative Services (“Rockport”) asserting causes of action for elder abuse and negligence.  On July 27, 2022, Plaintiff filed Doe amendments adding West Hollywood Healthcare & Wellness Center, L.P. (“WHHWC”) and West Hollywood Wellness G.P., LLC (“WHW”) as defendants.  Plaintiff filed a motion for trial preference, and on August 15, 2022, the Court continued the hearing so Plaintiff could serve all defendants.  Plaintiff has done so, and dismissed RRT.

Code of Civil Procedure section 36 provides in part: “A party to a civil action who is over 70 years of age 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.  (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).)  In addition, Section 36, subdivision (e) states: “Notwithstanding 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.”

Per Code of Civil Procedure section 36.5, “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.” (See also Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534.)  However, “Admissible evidence is still required as to the party's age (e.g., declarations by party or admissible records showing he or she is over 70).  The attorney's declaration is not sufficient for this purpose.”  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 12:247.3.)

In this case, Plaintiff is 82 years-old.  Plaintiff is unable to take deep breaths, which places her at risk for pneumonia.  Plaintiff also has poor motor function, which places her at high risk for falls and injuries resulting therefrom.  (See Declaration of Shahab Attarchi, M.D., ¶¶ 6-9.)  Dr. Attarchi opines that “to a reasonable degree of medical certainty there exists a substantial medical doubt that Connie Hawthorne has more than six months to live.  (Id., ¶ 10.)  This evidence shows that Plaintiff’s health necessitates trial preference.  Accordingly, the Court grants the motion.  However, the Court notes that, as Plaintiff has requested the benefits of trial preference, Plaintiff must also accept the hardships associated with preparation for trial in a shortened timeframe.  (See Civ. Code, § 3521.)

Based upon the foregoing, the Court orders as follows:

1.         The Court grants Plaintiff’s motion for trial preference.

2.         The Court finds that the deadline for this case to proceed to trial is January 24, 2023. 

3.         The Court sets the following dates:

            Final Status Conference:         January 3, 2023, at 9:30 a.m.

            Trial:                                        January 10, 2023, at 9:30 a.m.

4.         Plaintiff’s counsel shall provide notice and file proof of such with the Court.