Judge: Bruce G. Iwasaki, Case: 22STCV23052, Date: 2023-02-09 Tentative Ruling

Case Number: 22STCV23052    Hearing Date: February 9, 2023    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:             February 9, 2022

Case Name:                 William Doyle dba Collection Network v. Constructure, Inc. et al.

Case No.:                    22STCV23052

Motion:                       Motion for Trial Setting Preference

Moving Party:             Plaintiff William Doyle

Opposing Party:          Unopposed

            This is a breach of contract action.  William Doyle dba Collection Network (Plaintiff) sues Constructure, Inc., Benjamin J. Bohannan, 8521 S. LLC, and Harco National Insurance Company (Defendants) for common counts, breach of written contracts, foreclosure on mechanics lien, recovery on surety bond, and quantum meruit.  Plaintiff is a debt collection company seeking to collect on monies owed by Defendants from equipment rentals with PDQ Enterprises, Inc.[1]  A total of $27,907.23 is allegedly owed.

            Plaintiff in pro per moves for a court order granting preference for trial because he is 85 years old, has a substantial interest in the action, and suffers from numerous ailments including cerebrovascular accident and congestive heart failure.  No oppositions have been filed.  

Legal Standard

            A party to a civil action who is over 70 years of age is entitled to preference upon a showing that the party has a substantial interest in the action as a whole and the health of the party is such that preference is necessary to avoid prejudice.  (Code Civ. Proc., § 36, subds. (a)(1)–(2).)  “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.”  (Id., § 36.5.)

            “Where a party meets the requisite standard for calendar preference under [Code of Civil Procedure section 36] subdivision (a), preference must be granted.  No weighing of interests is involved.  (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535.) “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.  The trial court has no power to balance the differing interests of opposing litigants in applying the provision.”  (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.)

            “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.”  (Code Civ. Proc., § 36, subd. (f).)

Discussion

            Here, Plaintiff submits his own declaration of her counsel and attaches a report from his medical provider  He avers that he is 85 years old, suffers from “a number of debilitating and life threatening maladies” including stroke and congestive heart failure.  (Doyle Decl., ¶¶ 4-7.)  The medical report corroborates the diagnoses.

            The Court finds that Plaintiff has substantial interest in this action, given that he is the named plaintiff.  He has shown that he is over 70 years old and has health conditions such that preference is necessary to avoid prejudice.  Plaintiff is thus entitled to trial preference pursuant to Code of Civil Procedure section 36, subdivision (a), which is mandatory, and the Court does not weigh any interests.  (Rice v. Superior Court (1982) 136 Cal.App.3d 81, 86-87; Fox v. Superior Court, supra, 21 Cal.App.5th at p. 535; See Niesner v. Kusch (1986) 186 Cal.App.3d 291, 299 [“Unlike section 36, subdivision (d), where the granting or denying of a motion for trial preference lies in the sound discretion of the trial court [citations], section 36 subdivision (a), requires a trial court to give preferential trial setting to any civil case upon the motion of a party to that action who has reached the age of 70, irrespective of the circumstances leading to the motion for preference”].)

            Accordingly, the motion for order granting preference for setting trial is granted.  The Court will set a trial date at the hearing.