Silvia Contreras et al vs Costco Wholesale Corporation et al

Case Number

23CV02771

Case Type

Hearing Date / Time

Mon, 09/23/2024 - 10:00

Nature of Proceedings

Motion for Trial Preference

Tentative Ruling

Silvia Contreras, et al. v. Costco Wholesale     

Case No. 23CV02771         

Hearing Date: September 23, 2024                                       

HEARING:              Plaintiffs’ Motion for Preferential Trial Setting

ATTORNEYS:        For Plaintiffs Silvia Contreras, Mariano Contreras, and Adalberto Contreras: Harout Greg Keosian, Natalie H. Suri

                                    For Defendant Costco Wholesale Corporation: Sean R. Burnett, Jessica Farley

                                   

TENTATIVE RULING:

The motion to preferentially set the trial date is denied.

Background:

This action commenced on June 28, 2023, by the filing of the complaint by plaintiffs Silvia Contreras (“Silvia”), Mariano Contreras (“Mariano”), and Adalberto Contreras (“Adalberto”) against Costco Wholesale Corporation (“Costco”) setting forth causes of action for: (1) negligence - premises liability; (2) negligent hiring; (3) loss of consortium; and (4) negligent infliction of emotional distress. (Note: due to common surnames plaintiff’s will be referred to by their given names to avoid confusion. No disrespect is intended.)

As alleged in the complaint:

On October 3, 2022, Silvia was at Costco in Goleta, standing at the entrance, when a Doe employee struck Silvia from behind with multiple shopping carts that he was pushing, causing Silvia to fall to the ground and sustain injuries. (Compl., ¶ 9.) Silvia’s injuries include a right ankle fracture that necessitated four surgeries, a precipitating factor for Silvia’s kidney disease necessitating dialysis treatment, and a head injury. (Ibid.)

Mariano is Silvia’s husband and makes a claim for loss of consortium. (Compl., ¶¶ 27-32.)

Adalberto is Silvia’s son and was present at the scene of the accident and makes a claim for negligent infliction of emotional distress. (Compl., ¶¶ 33-40.)

Costco filed its answer to the complaint on August 4, 2023, asserting a general denial and 12 affirmative defenses.

Plaintiffs now move for trial preference, arguing that Silvia suffers from severe medical complications which continue to deteriorate.

Costco opposes the motion.

Analysis:

            Preference

“ (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.

“(b) A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under 14 years of age unless the court finds that the party does not have a substantial interest in the case as a whole. A civil action subject to subdivision (a) shall be given preference over a case subject to this subdivision.

“(c) Unless the court otherwise orders:

            “(1) A party may 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.

            “(2) At any time during the pendency of the action, a party who reaches 70 years of age may file and serve a motion for preference.

“(d) In 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.

“(e) Notwithstanding 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, subds. (a)-(e); italics added.)

Plaintiffs are bringing the present motion pursuant to subdivision (e), which is discretionary.

“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. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36.” (Code Civ. Proc., § 36.5; italics added.) As noted above, plaintiffs’ motion is not brought pursuant to subdivision (a), and is subject to normal rules of personal knowledge, foundation, and admissibility. The declaration of plaintiffs’ counsel is not purported to be based on “information and belief.” Rather, counsel declares: “The following statements are based upon my personal knowledge of this matter . . ..” (Suri Decl., ¶ 1.) It is extremely unlikely that plaintiffs’ counsel would have personal knowledge of Silvia’s medical condition, treatment, or prognosis, and she has failed to lay any foundation for such knowledge. Despite the inadmissibility of the statements, because the motion will be denied, the court will consider counsel’s representations regarding Silvia’s medical conditions.

By way of the declaration, plaintiffs’ counsel declares that Silvia suffers from “severe medical complications, which continue to deteriorate.” (Suri Decl., ¶ 14.) Silvia’s ability to do basic things is expected to decline which will impair her ability to participate in her lawsuit, including effectively thinking and responding to questions over an extended period, a decreasing ability to read and comprehend documents, difficulties preparing for testimony, a decreased ability to recall past events, discuss work history, or assess damages. (Ibid.)

Plaintiff’s counsel discusses Silvia’s treatment related to her right ankle and resulting infections. Plaintiffs’ counsel then discusses Silvia’s traumatic brain injury that has caused “significant and persistent pain, memory issues, difficulty focusing, loss of hearing, and emotional disturbances such as anxiety and depression.” (Suri Decl., ¶ 16.)

Plaintiffs’ ultimate conclusion is: “Given the Plaintiff’s significant and numerous health conditions as outlined above, it is crucial that a trial date be set in the near future. Delaying a trial date could have severe consequences for the Plaintiff, who is already living day-to-day with considerable challenges. While she is not currently on the verge of death, she suffers from the effects of a Traumatic Brain Injury, severe fatigue, and loss of strength due to dialysis treatments she undergoes 3-4 times per week. Additionally, she faces the constant threat of needing another surgery, which, like her previous four surgeries, could result in significant infections and a rapid further decline in her health. If her health continues on the path that it’s on, she will be unable to be present at trial, which could be severely detrimental to her case.” (Suri Decl., ¶ 18.)

By way of the reply brief, plaintiffs imply that Fox v. Superior Court (2018) 21 Cal. App.5th 529 (Fox) mandates that trial preference be granted. In Fox, the plaintiff was 81 years old and was suffering from stage IV lung cancer and various related ailments. The motion, in Fox, was brought pursuant to Code of Civil Procedure section 36, subdivision (a), set forth above, which is one of the mandatory provisions under that code section. Here, Silvia is not “over 70 years of age” and Fox is not applicable.

Plaintiffs also admit that they are not relying on subdivision (d) for their motion, and accuse Costco of “attempting to muddy the issue by conflating different sections.” (Reply, p. 2, ll. 1-6.) It is true that Costco’s argument discusses subdivision (d). However, the discussion is not an attempt to “muddy the issue.” Rather, Costco uses that subdivision as an example and explanation of exactly why it should be plaintiffs’ burden to produce clear and convincing medical documentation in support of her request for trial preference. The court agrees. It would make little sense for the legislature to require clear and convincing medical documentation that shows a party suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, but not require the same for someone who has a medical condition but is not necessarily expected to pass away in that timeframe.

While subdivision (e) does not set forth a standard of proof for the discretionary granting of preference, even if the standard of proof were a preponderance of the evidence, plaintiffs’ motion would fail. Plaintiffs have provided no admissible evidence that Silvia’s medical conditions will prevent her from participating in trial. Even the unauthenticated medical records provided with plaintiffs’ reply to Costco’s opposition fail to show that preference is warranted. In fact, some of the records contradict claims made by plaintiffs’ counsel in the original declaration. For example, the first record attached, from Los Angeles Institute of Foot & Ankle Surgery, Inc., with an August 26, 2024 date of visit, shows that Silvia “denies: fainting spells, dizziness, headache, fatigue, weakness . . . “, etc. This is in direct contradiction of paragraphs 16 and 18 of the declaration submitted in support of the motion.  The medical records attached to the reply declaration address Silvia’s ankle condition, diabetes, and related conditions. There are no records relating to Silvia’s claimed traumatic brain injury or any inability to mentally function enough to participate in trial.

Plaintiffs’ motion is not “supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.” The motion will be denied.