Judge: Stephen P. Pfahler, Case: 23CHCV00294, Date: 2023-04-21 Tentative Ruling

Case Number: 23CHCV00294    Hearing Date: April 21, 2023    Dept: F49

Dept. F-49

Date: 4-21-23

Case #23CHCV00294

Trial Date: Not Set

PREFFERENCE

MOVING PARTY: Plaintiff, Anahid Terzian

RESPONDING PARTY: Defendant, Ararat Home of Los Angeles

RELIEF REQUESTED

Motion for Trial Preference

SUMMARY OF ACTION

During the residence of plaintiff Anahid Terzian with Defendant Ararat Home of Los Angeles, a skilled nursing facility, Plaintiff allegedly fell multiple times thereby causing fractures and other injuries. On February 1, 2023, Plaintiff filed a complaint Elder Abuse and Negligence.

RULING: Granted.

Plaintiff Anahid Terzian moves for trial preference on grounds that Plaintiff is 85 years old, and Plaintiff’s current health condition supports trial preference. Defendant Ararat Home of Los Angeles in “limited opposition” acknowledges the application of the statute, but requests any trial setting on the later end of the 120 day window. Plaintiff in reply acknowledges the concession of Defendant to trial preference. Plaintiff then challenges the opposition’s arguments on the “legal merits” of the action. Plaintiff agrees to cooperate in all discovery.

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 presents declarations establishing that Plaintiff is 85 years old, and suffering from a myriad of medical conditions beyond the injuries as a result of the falls. The motion is supported by a declaration from Shahab Attarchi, M.D., who opines Plaintiff faces a life expectancy of less than six months. (Code Civ. Proc., § 36, subd. (c)(1).)

Because the action is not at issue, 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).)

The court agrees with the 120 day setting window. One hundred twenty days from the date of the motion falls on Saturday August 19, 2023. Given the court sets it’s trials for Mondays, the trial date is therefore set for a starting date no later than August 14, 2023, with the reservation of a 15 days continuance, if necessary.

The court notes Defendants’ right to a motion for summary judgment though if Defendant choses to address challenges via demurrer, the court only notes this provision relative to the hard deadlines now applicable to this action. (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 concerns and/or in the interests of efficiently expediting discovery should the individual defendant or witness(es) require accommodation, due to work schedules.

Demurrer set for June 13, 2023.

Plaintiff to give notice.