Judge: Teresa A. Beaudet, Case: 22STCV00664, Date: 2022-07-25 Tentative Ruling

Case Number: 22STCV00664    Hearing Date: July 25, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Valarie Burks, on behalf of her husband, Gregory Burks, as Power of Attorney (“Plaintiff”) filed this action on January 6, 2022 against Defendants Providence Little Company of Mary Foundation and Providence Health & Services.   

On April 25, 2022, Plaintiff filed an Amendment to the Complaint substituting the true name of Providence Health System - Southern California, dba Providence Little Company of Mary Medical Center Torrance (“Providence Health System”) for the incorrect name Providence Little Company of Mary Foundation. 

On April 27, 2022, Plaintiff filed the operative First Amended Complaint, alleging causes of action for (1) elder abuse and neglect, (2) willful misconduct, and (3) negligence. Plaintiff alleges that Gregory Burks was admitted as a patient to Providence Health System on July 3, 2021. (FAC, ¶ 32.) Plaintiff alleges that rather than adequately provide the care and treatment that Gregory Burks needed, Defendants willingly neglected his needs and left him unsupervised and unmonitored for extended periods of time for their own convenience. (FAC, ¶ 35.) As a result of being left alone in one position for hours at a time, Gregory Burks developed a sacral pressure sore, which eventually developed into a stage III sacral decubitus ulcer 10 days after his admission. (FAC, ¶ 36.) In addition, as a result of Defendants’ perpetual understaffing and consciously leaving Gregory Burks alone for hours at a time, Mr. Burks suffered severe weight loss after his admission to Providence Health System. (FAC, ¶ 38.) 

 Plaintiff now moves for trial setting preference pursuant to Code of Civil Procedure section 36, subdivisions (a) and (e). Trial in this matter is currently set for June 12, 2023. Providence Health System and Providence Health & Services (jointly, “Defendants”) filed a response to the motion. 

Discussion

Code of Civil Procedure section 36, subdivision (a) provides:

(a) 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.

If the Court makes these findings, trial preference is mandatory–the Court lacks discretion to deny the relief. ((Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 692.) The purpose of section 36, subdivision (a) is “to safeguard to litigants beyond a specified age against the legislatively acknowledged risk that death or incapacity might deprive them of the opportunity to have their case effectively tried and the opportunity to recover their just measure of damages or appropriate redress.” ((Kline v. Superior Court (1991) 227 Cal.App.3d 512, 515.) In addition, “[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).)  Upon the granting of a motion for trial preference, “the court shall set the matter for trial not more than 120 days from that date.” (Code Civ. Proc., § 36, subd. (f).)

Gregory Burks is 73 years old with a history of 2 prior strokes, diabetes, dyslipidemia, hypertension, residual right-sided weakness, speech deficits, as well as a history of a posterior pelvis stage 4 pressure injury. (Schechter Decl., ¶ 6.) According to a physician who performed a telemedicine evaluation of Gregory Burks on June 14, 2022 (“Dr. Schechter”), Mr. Burks has 3 significant underlying medical conditions that render him at great risk of imminent death. (Schechter Decl., ¶¶ 4, 11.) First, Mr. Burks has difficult to control hypertension, complicated by dyslipidemia, requiring four anti-hypertensive medications, as well as a statin to control his lipid metabolism. (Schechter Decl., ¶ 11.) Given that he has had prior strokes, he has profound vasculopathy, and is at great risk of both additional terminal cerebral vascular accidents, as well as sudden death from coronary artery disease. (Ibid.) This is complicated by the fact that he is on strong anticoagulants, so even an ischemic stroke can lead to secondary hemorrhage, and his demise. (Ibid.) Second, he has type 2 diabetes mellitus, which is both a cause of vascular disease, and exacerbates the risk associated with hypertension. (Ibid.) Lastly, he is profoundly immobile, and is at significant risk of developing both community-acquired pneumonia and aspiration pneumonia. (Ibid.) It is Dr. Schechter’s opinion that to a reasonable degree of medical probability, Mr. Burks could die at any point in time in the very near future. (Schechter Decl., ¶ 12.) 

The Court finds that Gregory Burks has a substantial interest in this action as a whole and that his health is such that preference is necessary to prevent prejudicing his interests in this litigation. Accordingly, the Court finds that Plaintiff is entitled to trial preference.

In their response to the motion, Defendants indicate that they are not opposing the motion, but request that the trial be set as close to the 120 day limit as the Court will allow due to the large amount of discovery that must be completed before trial.

Conclusion

Based on the foregoing, Plaintiff’s motion for trial preference is granted. 

The Court sets the following dates:

Trial readiness and exhibit binders:

Final Status Conference:

Trial:

Plaintiff is ordered to give notice of this Order.

DATED:  July 25, 2022                                  ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court