Judge: Stephen P. Pfahler, Case: 22STCV15237, Date: 2023-09-14 Tentative Ruling

Case Number: 22STCV15237    Hearing Date: September 14, 2023    Dept: F49

Dept. F-49

Date: 9-14-23 c/f 9-11-23

Case #22STCV15237

Trial Date: Not Set

PREFFERENCE

MOVING PARTY: Plaintiff, Eliot Witherspoon

RESPONDING PARTY: Unopposed/Defendant, GHP Management Corporation, et al.

RELIEF REQUESTED

Motion for Trial Preference

SUMMARY OF ACTION

On September 7, 2020, plaintiff Eliot Witherspoon was descending an exterior staircase on 21200 Ficus Dr., Santa Clarita, a property owned and/or maintained by defendant GHP Management Corporation, when Plaintiff tripped and fell. Following discharge from the hospital, plaintiff was placed with defendant Woodland Care Center, whereby Plaintiff developed bed sores/pressure wounds

 On May 6, 2022, Plaintiff filed a complaint Premises Liability, Negligence, Elder Abuse/Neglect, Violation of Patients’ Bill of Rights, and Negligence (second time). On December 7, 2022, Plaintiff dismissed Ano Two Facility for the Elderly, Inc. The action was originally assigned to Department 31, then transferred to Department 49 on April 25, 2023. On July 27, 2023, Plaintiff dismissed Woodland Care Center, an entity of form unknown.

RULING: Granted.

Plaintiff Eliot Witherspoon moves for trial preference on grounds that plaintiff is a 71 year old paraplegic, with other significant comorbidities, thereby rendering Plaintiff’s prognosis poor. Defendant Woodland Care Center, LLC submitted a notice of non-opposition. The court shows no other oppositions or reply prior to the tentative ruling publication cutoff.

Code of Civil Procedure section 36 subdivision (a) states in relevant 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.”

The motion exclusively depends on a declaration from counsel presenting Plaintiff’s age and medical condition. (Code Civ. Proc., § 36.5.) The motion lacks any declaration of support from any treating physician establishing any life expectancy parameters. The court accepts the showing of counsel for purposes of establishing age and poor medical prognosis. (Code Civ. Proc., § 36, subd. (a), (c)(1).)

The unopposed motion is granted. Because the action was transferred in April, the court lacked a prior opportunity to set a trial date. “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. 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.” (Code Civ. Proc., § 36, subd. (f).)

A 120 day setting window from the hearing date is Tuesday January 9, 2024. Given the court sets it’s trials for Mondays, the trial date is therefore set for a starting date no later than January 8, 2023, with the reservation of a 15 days continuance, if necessary.

The court notes Defendants’ right to a motion for summary judgment with a date currently scheduled for November 29, 2023. (See Polibrid Coatings, Inc. v. Superior Court (2003) 112 Cal.App.4th 920, 923; Mediterranean Const. Co. v. State Farm Fire & Cas. Co. (1998) 66 Cal.App.4th 257, 262.)

The court orders the parties to cooperate in the expedited setting of the depositions of witnesses, experts and parties. Depositions can occur via video or telephonic means, due to Covid or other health concerns and/or in the interests of efficiently expediting discovery should the individual plaintiff or witness(es) require accommodation, as well. The court also advises the parties that any extensive discovery disputes may be referred to a referee via expedited schedule.

Plaintiff to give notice.