Judge Stephen P. Pfahler, Case Number: 23CHCV01586, Date: 2023-12-27 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 23CHCV01586, Date: 2023-12-27 Tentative Ruling

Case Number: 23CHCV01586 Hearing Date: December 27, 2023 Dept: F49

Dept. F-49

Date: 12-27-23

Case #23CHCV01586

Trial Date: Not Set

PREFFERENCE

MOVING PARTY: Plaintiff, Jose Escobar

RESPONDING PARTY: Defendants, Kohl’s, Inc., et al.

RELIEF REQUESTED

Motion for Trial Preference

SUMMARY OF ACTION

On September 7, 2020, plaintiff Jose Escobar was on the premises of a Kohl’s store located at 19307 Golden Valley Road, Santa Clarita, when Plaintiff tripped and fell over a cord or wire across the floor.

On May 6, 2022, Plaintiff filed a complaint for Negligence, Premises Liability, and Loss of Consortium. On July 17, 2023, defendant Kellermeyer Bergensons Services, LLC, answered the complaint. On August 21, 2023, Kohl’s, Inc. answered the complaint. On October 24, 2023, Kohl’s, Inc. filed a cross-complaint for indemnity and declaratory relief against Kellermeyer Bergensons Services, LLC.

RULING: Granted.

Plaintiff Eliot Witherspoon moves for trial preference on grounds that plaintiff is 78 years old, with other significant comorbidities, thereby rendering Plaintiff’s prognosis poor.

Kellermeyer Bergensons Services, LLC opposes on grounds of a lack of evidence establishing a medical condition justifying preference. Defendant also maintains Plaintiff is not cooperating with discovery. Defendant also contends the delays in bringing the motion and lack of discovery constitutes a basis of severe prejudice.

Kohl’s, Inc. in opposition joins Kellermeyer Bergensons Services, LLC’s opposition, and argues that Plaintiff’s showing falls short of the statutory threshold.

Plaintiff in reply argues that Kellermeyer Bergensons Services, LLC glosses over the fact that Plaintiff is a nearly 80-year-old man with kidney failure that requires dialysis five days a week. Further, Kellermeyer Bergensons Services, LLC delayed in conducting discovery and Plaintiff reserved the first available date for this motion. Plaintiff contends there is no prejudice. Plaintiff has not made any reply arguments as to Kohl’s, Inc.’s opposition.

It’s not clear whether named defendant MGP Xi REIT, LLC, was served with the complaint; MGP Xi REIT, LLC was not served with the instant motion.

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. [Declaration of Robert Gravich.] (Code Civ. Proc., § 36, subd. (a), (c)(1), (d).)

While Kellermeyer Bergensons Services, LLC and Kohl’s, Inc. raises valid arguments in opposition, the evidentiary standard allows consideration based on the statements of counsel. While a specific prognosis remains lacking, the identified health problems justify preference. The court finds little to no showing of prejudice as a result of preference. The underlying trip and fall, medical damages, and indemnity claims, will not rise to the level of a complex case in terms of law or evidence.

The motion is therefore granted. Because the answers and cross-complaints were filed before the concurrent Case Management Conference, the court lacked 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 Thursday April 25, 2024. Given the court sets it’s trials for Mondays, the trial date is therefore set for a starting date no later than April 22, 2024, with the reservation of a 15 days continuance, if necessary.

The court notes Defendants’ right to a motion for summary judgment, if sought, but cannot shorten the 75-day filing deadline. (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.