Case Number: TC029100 Hearing Date: June 12, 2018 Dept: A

# 4. Charles Meloncon v. Unified Care Services, LLC. et al.

Case No.: TC029100

Matter on calendar for: Hearing on motion for trial setting preference

Tentative ruling:

I. Background

This is an action alleging Elder Abuse and Negligent Hiring and Supervision. Plaintiff Charles Meloncon is 83 years old and in poor health. He was placed on hospice care on February 13, 2018, with diagnoses including pulseless electrical activity with cardiac arrest, dementia, bacteremia, hypertension, and sepsis. (Mtn. Exh. 1.) The complaint was filed on March 26, 2018, with the answer filed May 4, 2018.

Meloncon provides a copy of a verbal hospice certification order by Dr. Anitha Mitchell. (Id.) Within the order, Dr. Mitchell certifies that Meloncon has a life expectancy of less than 6 months. (Id.) The declaration by Meloncon’s attorney states that in November 2017, Meloncon was treated at Torrance Memorial Medical Center for pneumonia, and in December 2017, Meloncon was treated at Harbor UCLA for pulseless electrical activity with cardiac arrest, bacteremia, hypertension, and sepsis. (Decl. pg. 1.)

Defendants Unified Care Services, LLC, Heritage Legacy, LLC, and Heritage Care, LLC, oppose the motion.

II. Standard

A court shall grant a motion for trial setting preference if the court makes the following findings: the moving party is (1) over 70 years old, (2) has a substantial interest in the litigation, and (3) the party’s health is “such that a preference is necessary to prevent prejudicing that party’s interest in the litigation.” (CCP § 36(a).) “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.” (CCP § 36(d).)

The preference motion must be supported by a “declaration of the moving party that all essential parties have been served with process or have appeared.” (CCP § 36(c)(1).) The declaration supporting a motion for trial setting preference “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.” (CCP § 36.5.)

If the court grants the motion for preference under CCP § 36(a) it must set the case for trial within 120 days after the motion is granted and the court has no discretion to delay the trial setting “except for physical disability of a party or a party’s attorney, or upon a showing of good cause stated in the record.” (CCP § 36(f); Sprowl v. Sup. Ct. (Raymark Indus.) (1990) 219 Cal.App.3d 777, 780.)

III. Analysis

Meloncon clearly meets the 70-year-old threshold under CCP § 36(a) and it is undisputed that he has a substantial interest in the action as a whole. Meloncon has provided the Court with the Hospice Certification where Dr. Anitha Mitchell has certified his life expectancy is less than six months (from February 13, 2018). (Mtn. Exh. 1.) Meloncon’s counsel has also affirmatively declared those facts. (Decl. pg. 1.) Under such circumstances, it is necessary for a trial to be held quickly to prevent prejudicing Meloncon’s interest in the litigation. Therefore, under CCP § 36(a), the Court must grant Meloncon’s motion for trial preference.

Defendants argue that the declaration by Meloncon’s counsel is not sufficient to prove necessary preference under CCP § 36(a). This is incorrect; CCP § 36.5 expressly allows such declarations to fully support the motion. Defendants also argue that none of Meloncon’s conditions is life-threatening, but Defendants do not directly address Meloncon’s conditions or the issue of the hospice certification detailing his ill state. Finally, Defendants argue that their interests and right of due process would be violated by the trial preference. Defendants fail to cite relevant supportive authority for this position.

In the alternative, Defendants ask that trial be set towards the end of the 120-day time limit.

IV. Ruling

The Court grants the motion for trial preference. Trial will be set within 120 days of the hearing.