Judge: Barbara M. Scheper, Case: 22STCV13300, Date: 2022-10-11 Tentative Ruling

Case Number: 22STCV13300    Hearing Date: October 11, 2022    Dept: 30

Dept. 30

Calendar No.

Karshner vs. Kensington Senior Living, LLC, et. al., Case No. 22STCV13300

Tentative Ruling re:  Plaintiff’s Motion for Trial Preference

            Plaintiff Roger Karshner (Plaintiff) moves for an order granting trial preference pursuant to Code of Civil Procedure § 36, subd. (a). The motion is granted.

            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.

(Code Civ. Proc. § 36, subd. (a).)

Plaintiff is 94 years old and suffers from dementia, chronic kidney disease, osteoporosis, reflux disease, and anxiety disorder. (Verdugo Decl. ¶ 2, Ex. 1.) Plaintiff has also survived both prostate cancer and COVID. (Verdugo Decl. ¶¶ 3-4.) Plaintiff’s counsel states that Plaintiff’s mental and physical state has deteriorated rapidly in recent months. (Verdugo Decl. ¶ 7.)

This evidence is clearly sufficient to support mandatory trial preference pursuant to Code Civ. Proc. § 36(a). “The standard under subdivision (a), unlike under subdivision (d), which is more specific and more rigorous, includes no requirement of a doctor's declaration. To the contrary, a motion under subdivision (a) may be supported by nothing more than an attorney's declaration ‘based upon information and belief as to the medical diagnosis and prognosis of any party.’ ” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534.) “The 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 that party's ‘health ... is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.’” (Id. at 535 [emphasis in original].) Based on Plaintiff’s advanced age and health condition as described in his counsel’s declaration, preference is necessary to prevent prejudicing Plaintiff’s interests in this litigation.

Defendants’ argument that Plaintiff would not be prejudiced by his own death is without merit. The very purpose of section 36(a) is “to protect a Legislatively acknowledged substantive right to trial and to obtain a full measure of damages during the litigant's lifetime.” (Rice v. Superior Court (1982) 136 Cal.App.3d 81, 90.)

Defendants further argue that the motion should be denied because they will be prejudiced with respect to discovery. However, in granting preference under section 36(a), “[m]ere inconvenience to the court or to other litigants is irrelevant. [Citation.] Failure to complete discovery or other pretrial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.)

Accordingly, the motion is granted. Trial shall be set for a date not more than 120 days from the date of this hearing, that is, prior to February 8, 2023.