Judge: Barbara M. Scheper, Case: 22STCV20036, Date: 2023-07-10 Tentative Ruling

Case Number: 22STCV20036    Hearing Date: July 10, 2023    Dept: 30

Dept. 30

Calendar No.

Zakariyaie vs. Zakaryaie, et. al., Case No. 22STCV20036

Tentative Ruling re: Plaintiff’s Motion for Trial Preference

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

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).)

Trial in this action is currently scheduled for March 11, 2024.

Plaintiff’s motion argues that trial preference is warranted because both Plaintiff and Defendant Farideh Zakaryaie (Farideh) are older than 70, and because Farideh is incapacitated and incompetent. The Court agrees with Defendants that Plaintiff cannot seek trial preference based on the health of the opposing party, and that Plaintiff’s motion fails to show grounds for preference under Section 36(a).

In the Reply, Plaintiff has submitted evidence of his own health. Plaintiff states that his health is declining, that he is affected by partial paralysis that requires the use of a walker, and that he cannot sit in or rise from a chair without assistance. (Zakariyae Decl. ¶ 3.) Plaintiff recently fell and is confined to his home due to his injuries. (Zakariyae Decl. ¶ 4.) Plaintiff also attaches a note from his treating provider, Dr. Mark Ganjianpour, who confirms Plaintiff’s condition and states that Plaintiff cannot leave his home or drive for 1 month (as of June 16, 2023). (Reply p. 4.)

The new evidence submitted with the reply is improper and fails to demonstrate that Plaintiff’s interest in the action will be prejudiced in the absence of a preferential trial setting. The Court notes that Plaintiff has reserved a hearing date of September 8 for a motion for leave to amend the complaint suggesting to the Court that Plaintiff feels more time is necessary and appropriate to properly prepare the case for trial.