MICHEL VERRIER, ET AL. VS WASTE MANAGEMENT OF CALIFORNIA, INC., A CALIFORNIA CORPORATION, ET AL.

Tentative Rulings

Case Number: *******8500 Hearing Date: December 6, 2021 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On May 17, 2021, Plaintiffs Michel Verrier (“Plaintiff”) and Jeanne Verrier (“Verrier”) (collectively, “Plaintiffs”) filed this action against defendants Francisco Perez and USA Waste of California, Inc. (erroneously sued as “Waste Management Collection and Recycling, Inc.” and “Waste Management of California, Inc.”) (collectively, “Defendants”). Plaintiff alleges that on April 29, 2021, he was riding his bicycle in Manhattan Beach, California, when a trash truck made a sudden right turn without signaling. Plaintiff collided with the truck and was thrown off his bicycle onto the asphalt roadway where the truck subsequently ran over his right leg, crushing it.

Trial is currently scheduled for November 14, 2022. Plaintiffs move for trial preference pursuant to Code of Civil Procedure section 36(a). Plaintiff is 79 years old and Verrier, who asserts a claim for loss of consortium, is 76 years old.

A party who is over 70 years old 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; and (2) the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. (Code Civ. Proc., ; 36, subd. (a).) An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. (Code Civ. Proc., ; 36.5.)

“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).)

Plaintiffs argue that they have substantial interests in this litigation, which Defendants do not dispute. Indeed, Plaintiff has suffered substantial physical injuries and Verrier’s damages under a loss of consortium claim would be greater than a wrongful death action. Instead, Defendants take issue with whether Plaintiffs have established that their health such that a preference is necessary to prevent prejudicing their interests in the litigation.

Defendants argue that Plaintiffs have not sufficiently shown that Plaintiff suffers from a deteriorating condition to justify the conclusion that he would be unable to participate in a later trial. (Opp., 4:10-11.) Defendants claim that Plaintiffs only speculate that Plaintiff’s symptoms are likely to progress or worsen, and there is no evidence that his condition will worsen to the point of mortality or an inability to testify. (Id., 4:11-16.)

However, “[t]he issue under subdivision (a) is not whether an elderly litigant might die before trial or become so disabled that she might as well be absent when trial is called. Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that the party’s “health . . . is such that a preference is necessary to prevent prejudicing [her] interest in the litigation. (Italics added.)” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534.)

Plaintiff suffered significant orthopedic and internal organ injuries. (Bertch Decl., ¶ 3.) He cannot stand or walk and cannot toilet without assistance. He also has a high mortality risk from COVID-19 given his advanced age and serious health condition. (Bertch Decl., ¶ 4.) Plaintiff was born with one kidney and the trauma caused by this incident has placed immense strain upon it. (Bertch Reply Decl., ¶ 3.) Additionally, although Plaintiff will be required to be discharged from Providence Little Company of Mary hospital by the time of this hearing, it will be due to his financial hardship and not due to his improved medical condition. (Supp. Bertch Decl., ¶ 3.) Plaintiff is also facing the possibility of leg amputation, which his physicians recommend. (Supp. Bertch Decl., ¶ 4.) Although there is no indication whether Plaintiff will proceed with the amputation, the procedure would require post-operative care and be accompanied by the risks and complications of surgery such as infection and death. (Ibid.)

Even if Plaintiff chose not to undergo amputation, the Court finds that he has sufficiently shown that preference is necessary to prevent prejudicing his interests in the action. Plaintiff’s physical condition is obviously frail and his recovery is uncertain. As articulated by the Fox court, the absence of specifics regarding plaintiff’s prognosis is insufficient reason to deny a request for calendar preference. “Subdivision (a) requires the granting of calendar preference to ‘prevent’ prejudice to a stricken litigant’s interests. [Italics added.] The idea that [plaintiff] should be made to wait to file a preference motion until she is clearly in her final days—when attendance at a trial is hardly what she should be doing—makes no sense at all.” (Fox, supra, 21 Cal.App. 5th at p. 536.)

Defendants suggest that in lieu of granting Plaintiffs’ motion, the Court should advance the trial date to June or July of 2022 in order to preserve flexibility and allow Defendants to conduct the required discovery on Plaintiff’s ongoing and anticipated treatment. (Opp., 6:16-28; Argumosa Supp. Decl, ¶ 3.) This suggestion is impermissible. “Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted. No weighing of interests is involved.” (Fox, supra, 21 Cal.App.5th at p. 535; see also Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 692 [“section 36, subdivision (a) . . . is mandatory and absolute in its application and does not allow a trial court to exercise the inherent or statutory general administrative authority it would otherwise have”].) Any inconvenience to the court or to other litigants is irrelevant and “[f]ailure to complete discovery or other pretrial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.)

Accordingly, Plaintiffs’ motion for trial preference is GRANTED. Trial is advanced from November 14, 2022, to March 30, 2022, at 8:30 a.m. in Department 27. The Final Status Conference is advanced from October 31, 2022, to March 16, 2022, at 10:00 a.m. The parties are ordered to inform all percipient and expert witnesses of the new trial date as soon as possible.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.