Judge Cynthia A Freeland, Case Number: 37-2023-00034107-CU-PO-NC, Date: 2024-06-07 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2023-00034107-CU-PO-NC, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - June 06, 2024

06/07/2024 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited PI/PD/WD - Other Motion Hearing (Civil) 37-2023-00034107-CU-PO-NC GARCIA VS CRILLEY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 03/21/2024

Plaintiff Gilbert Garcia ('Plaintiff')'s motion for trial preference is denied without prejudice.

California Code of Civil Procedure ('CCP') � 36(a) permits a party who is over 70 years of age to petition the court for a preference if: (1) the party has a substantial interest in the action as a whole; and (2) the party's health is such that a preference is necessary to prevent prejudicing his or her interest in the litigation. See Cal. Code Civ. P. � 36(a). 'The clear intent of the Legislature is to safeguard litigants who qualify under subdivision (a) against the acknowledged risk that death or incapacity might deprive them of the opportunity to have their case effectively tried and to obtain the appropriate recovery.' Swaithes v. Sup. Ct. (1989) 212 Cal. App. 3d 1082, 1085 (citing Rice v. Sup. Ct. (1982) 136 Cal. App. 3d 81, 86-89).

Preference under CCP � 36(a) is mandatory provided its elements are satisfied, i.e., the court lacks discretion to deny the motion. See Pabla v. Superior Court of Merced County (2023) 90 Cal. App. 5th 599, 602-603. Toward that end, the Second District Court of Appeal has noted: The application of section 36, subdivision (a), does not violate the power of trial courts to regulate the order of their business. Mere inconvenience to the court or to other litigants is irrelevant. (Rice v. Superior Court, supra, 136 Cal.App.3d at pp. 89-94, 185 Cal.Rptr. 853.) Failure to complete discovery or other pre-trial 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. The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations. (Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 698-699, 225 Cal.Rptr. 657.) Accordingly, subdivision (a) of section 36 is mandatory and absolute in its application in civil cases whenever the litigants are 70 years old. (Id. at p. 694, 225 Cal.Rptr. 657.) Swaithes, 212 Cal. App. 3d at 1085-1086.

The court finds that Plaintiff has failed to make the requisite evidentiary showing entitling him to trial preference under CCP � 36(a). As set forth above, trial preference under CCP � 36(a) is mandatory provided that Plaintiff establishes that: (1) he is over 70 years old, and (2) his health is such that a preference is necessary to prevent prejudicing his interest in the litigation. To start, Plaintiff provides no evidence that he, in fact, is over the age of 70. The Notice of Motion states in conclusory fashion that Plaintiff is over 70 years old; however, that 'fact' is not substantiated by Mr. Dicks's Dr. Devoss's, or Mrs.

Garcia's respective declarations. At most, Mr. Dicks's declaration suggests that Plaintiff is at an 'advanced age'. See Dicks Decl., � 4. The foregoing is sufficient grounds to deny the motion.

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3106076 CASE NUMBER: CASE TITLE: GARCIA VS CRILLEY [IMAGED] 37-2023-00034107-CU-PO-NC Even if Plaintiff had submitted evidence that he is over the age of 70, the court nevertheless would deny the motion for Plaintiff's failure to provide sufficient admissible evidence that he will be prejudiced absent an order granting trial preference. First, Dr. Devoss's declaration is entirely inadmissible as it fails to comply with the prescriptions of CCP � 2015.5. Second, Mr. Dicks's declaration, while admissible for purposes of a motion for trial preference, fails to satisfy the requirements of CCP � 36.5. More specifically, under CCP � 36.5, Mr. Dicks is permitted to submit an affidavit 'upon information and belief as to the medical diagnosis and prognosis of any party.' See Cal. Code Civ. P. � 36.5. However, Mr.

Dicks merely describes in vague terms how Plaintiff's 'declining health' and 'advanced age' have impaired his daily life and will prejudice his interest in this action, without any specific information as to Plaintiff's medical diagnosis or prognosis. Finally, Mrs. Garcia's declaration is inadmissible to the extent she offers expert testimony as to Plaintiff's medical condition and/or prognosis given that the proper foundation for such testimony has not been laid. While Mrs. Garcia may provide declaratory testimony concerning her observations of Plaintiff's decline over the past year, her declaration, at best, establishes her opinion that Plaintiff 'will have little if any ability to participate in his claim should a preference trial date not be provided.' See Garcia Decl., ll. 11-12. This is insufficient to satisfy CCP � 36(a)'s requirements. Consequently, the court must deny the motion.

In light of the foregoing, the court denies Plaintiff's motion for trial preference without prejudice.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, June 7, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of June 7, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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