Judge Thomas Falls, Case 22PSCV01953 2023-02-03 Tentative Ruling

PLAINTIFF’S MOTION FOR TRIAL PREFERENCE (“Motion”) PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE § 36

Responding Party: Defendants ROCKPORT ADMINISTRATIVE SERVICES, LLC; POMONA NURSING AND HEALTHCARE CENTRE, LLC; LOS ANGELES NURSING HOMES, LLC; PACIFIC HEALTHCARE HOLDINGS, INC.; and POMONA HEALTHCARE & WELLNESS CENTER, LLC (“Opposing Defendants”)

PLAINTIFF’S MOTION FOR TRIAL PREFERENCE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE § 36 is DENIED.

This matter arises from an alleged elder abuse. Plaintiff WILMA VASQUEZ alleges that she was admitted to Defendants’ facility from Casa Colina on October 14, 2022. Upon admission to the facility, Plaintiff suffered from Thyroid issues that required a tracheostomy and trachea tube, which requires regular catheter suctioning to maintain a clear airway. However, due to Defendants’ alleged failures to use the correct catheter suction, to assess throat trauma, and to advise the physician of blood clots being suctioned from her trachea tube, on November 3, 2022, Plaintiff was found unresponsive. As a result, Plaintiff “suffered [a] gruesome injury . . . extreme and unnecessary pain and suffering, loss of personal dignity, shame and humiliation, degradation, anguish and emotional trauma.” (Complaint ¶42.)

On November 21, 2022, Plaintiff filed suit against Defendants SHLOMO RECHNITZ; ROCKPORT ADMINISTRATIVE SERVICES, LLC, POMONA NURSING AND HEALTHCARE CENTRE, LLC; LOS ANGELES NURSING HOMES, LLC; PACIFIC HEALTHCARE HOLDINGS, INC.; and POMONA HEALTHCARE & WELLNESS CENTER, LLC for (1) Dependent Adult Abuse (Pursuant to the Elder Adult and Dependent Adult Civil Protection Act – Welfare and Institutions Code §§15600, et seq.) 2) Negligence.

On December 8, 2022, Plaintiff served the summons and complaint upon the opposing Defendants.

On January 11, 2023, Plaintiff’s Order for Publication was granted as to Defendant Shlomo Rechnitz.

Plaintiff moves for trial preference based on CCP section 36 subdivision (d). (Motion p. 1.)

For litigants who are not over the age of 70, the court retains discretion pursuant to CCP section 36(d).[1] The statute provides that “[i]n its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.” (CCP § 36(d)) (emphasis added).

Plaintiff moves for trial preference because Plaintiff is “bedbound, morbidly obese 54-year-old woman with a medical history of respiratory failure, obesity related alveolar hypoventilation syndrome, +1 edema, hypothyroidism, hypertension, congestive heart failure, diabetes, asthma, obstructive sleep apnea on CPAP, severe hypercapnia, depression, GERD, kidney disease, severe weakness, history of intubation and a history of trachea.” (Motion p. 1.) Based on her health conditions, Plaintiff’s expert, Dr. Shahab Attarchi, has “determined that Wilma Vasquez suffers from health conditions such that to a reasonable degree of medical certainty there exists substantial medical doubt of Wilma Vasquez’s survival beyond six months.” (Motion p. 1.)

In opposition, Opposing Defendants advance the following arguments: (1) Defendant Shlomo has not yet been served with the complaint; (2) Dr. Attarchi’s declaration is conclusory; and (3) Defendants would be severely prejudiced.

First, Plaintiff in its Reply does not dispute that Defendant Shlomo has not been served but effectively argues that the delay in service is justified because Shlomo was evading service. Whether he has been evading service is irrelevant to notice requirements. Putting aside the concern with a violation of Defendant Shlomo’s due process rights for Plaintiff’s failure to yet serve him with the summons and complaint, CCP section 36(c)(1) requires that the moving party “file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared.” Here, however, Plaintiff has provided no such declaration. And to the extent that case law allows for Plaintiff to circumvent this requirement, Plaintiff has proffered no legal authority in its Reply. Therefore, for this reason alone, the motion is denied.

Second, a review of Dr. Attarchi’s declaration does not provide any medical reporting (i.e., the facts to lay the foundation) nor an explanation of how Plaintiff’s numerous health conditions (e.g., increase risk of cardiac event, unintentional weight loss, worsening edema, etc.) will likely cause her to not live beyond the next 6 months. Rather, Dr. Attarchi’s declaration conclusively states that Plaintiff suffers from certain health conditions and said certain health conditions place a patient for a high risk of “debility and death.” To the extent that Plaintiff relies on Dr. Attarchi’s accurate prediction in 30 other cases, that is inconsequential for numerous reasons including, but not limited to, the fact that Plaintiff does not state how many other individuals Dr. Attarchi has assessed (i.e., perhaps he examined 1,000 patients, but only 30 times of which he has been correct) nor does Plaintiff not state whether those individuals had a similar medical history to Plaintiff. Therefore, as Dr. Attarchi’s declaration is conclusory, it is insufficient to meet the clear and convincing evidentiary standard.[2]

Third, as for prejudice, granting trial preference would give Defendants only 42 days to conduct discovery for a summary judgment/adjudication motion.[3] Forty-two days to serve and receive responses to discovery, set and take depositions, and then prepare the summary judgment motion is not only impractical but impossible.[4] And contrary to Plaintiff’s contention that “Defendants are already in possession of the facts and records” such that it is Plaintiff who requires more time to conjure evidence, that is inaccurate as a matter of law in malpractice actions like this one. In medical malpractice actions, a plaintiff must prove the defendant's negligence was a cause-in-fact of injury. (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1502.) “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based [on] competent expert testimony.” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402–403.) Therefore, both parties need extensive time to conduct discovery on a summary judgment motion. Next, to the extent that Plaintiff avers that “the legislature of the state and the court hold that the inconvenience to the parties may not be considered by the Court in analyzing this motion,” that is an inaccurate representation of the law. (Reply p. 8.) In fact, a critical factor which the court must consider in ruling on a such a motion is any prejudice to the defendant resulting from the accelerated trial date. (Dick v. Superior Court (1986) 185 Cal.App.3d 1159, 1166, see also Opp. p. 7.) Lastly, to the extent that Plaintiff argues it is Defendants who have delayed starting discovery despite “ample time to do so,” this is disingenuous to both the timeline of the case and normal sequencing of events in litigation considering that Defendants were merely served with the summons and complaint on December 8, 2022. (See Reply pp. 4, 8.)

All in all, the decision to grant or deny a preferential trial setting rests in the discretion of the court in light of the totality of the circumstances. (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 344.) And here, the totality of the circumstances—circumstances such as that (i) Opposing Defendants’ were but recently served, (ii) one individual Defendant has yet to be served, (iii) Plaintiff’s expert did not by clear and convincing evidence establish that Plaintiff will not survive beyond the next six months, (iv) that no discovery has yet to be conducted in the action and setting a trial preference would inherently deprive Defendants’ of their statutory right to file a summary judgment motion—the court finds more prejudice to opposing Defendants than to Plaintiff.

[1] As such, Plaintiff’s contention that section 36 is mandatory and absolute is incorrect as a matter of law. (Motion p. 8.) To the extent that trial preference is mandatory, that pertains to litigants over the age of 70. (See Code of Civil Procedure¿§¿36 (a) [A party to a civil action who is over the age of 70 must be given preference if the party has a substantial interest in the¿action¿as a whole, and¿the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.].) Therefore, the court’s determination rests on its discretion.

[2] Though a summary judgment motion is different than a trial preference motion, a summary judgment motion has a lesser evidentiary burden than that of a trial preference motion because the latter requires clear and convincing evidence, such that reference to summary judgment evidentiary requirements would be helpful in assessing the admissibility of Dr. Attarchi’s evidence. In summary judgment motions, the expert's opinion must rest on a sound evidentiary foundation. “Cases dismissing expert declarations in connection with summary judgment motions do so on the basis that the declarations established that the opinions were either speculative, lacked foundation, or were stated without sufficient certainty . . . It is sufficient, if an expert declaration establishes the matters relied upon in expressing the opinion, that the opinion rests on matters of a type reasonably relied upon, and the bases for the opinion.”] (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 718, see also Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524, [The expert opinions offered by the defendant in support of summary judgment must be supported by reasons based upon evidentiary facts, not bare conclusions without explanation or analysis.]) (emphasis added). Furthermore, if the record lacks independent evidence of a patient's treatment history, the expert may not establish those facts simply by describing or relating the contents of medical records on which he or she relied to form an opinion. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 743.) Expert declarations may be based on hospital and medical records if they are properly authenticated. (Ibid.)

[3] As explained by Defendants, if this court grants plaintiff’s motion for trial preference on February 3, 2023, the court will be required to set trial within 120 days, i.e., June 2, 2023. But motions for summary judgment/adjudication must be heard no later than 30 days before trial and must be served at least 75 days before the hearing. (Code of Civil Procedure § 437c(a).) As such, if the court sets trial for June 2, 2023, defendants’ Motion for Summary Judgment/Adjudication will need to be heard no later than May 3, 2023 and personally served no later than March 17, 2023. (Opp. p. 7.)

[4] And equally so even if the court schedules the hearing on the summary judgment less than 30 days prior to the trial. (Code of Civil Procedure § 437c(a).)