Judge: Daniel S. Murphy, Case: 24STCV09555, Date: 2024-06-17 Tentative Ruling

Case Number: 24STCV09555    Hearing Date: June 17, 2024    Dept: 32

BACKGROUND

            On April 16, 2024, Plaintiff Lincoln Alline, through attorney-in-fact Kathryn Higgins, filed this action against Defendants Windsor Gardens Convalescent Hospital, Inc., SNF Management, Inc., Antelope Holdings II, LLC, and Antelope Holdings III, LLC. The complaint asserts causes of action for (1) negligence, (2) elder abuse, and (3) violation of the Patient Bill of Rights.

            On May 13, 2024, Plaintiff filed the instant motion for trial preference on the grounds that he is 91 years old and suffers from multiple debilitating conditions, including Parkinson’s disease.

LEGAL STANDARD

“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(a).) “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.” (Id., § 36(f).)

DISCUSSION

            Initial service of pleadings and documents must be effectuated by one of the methods prescribed in Code of Civil Procedure section 415.10 et seq. Service by mail is permitted only for subsequent papers after a party has appeared. (See Code Civ. Proc., § 1013.) The instant motion was served by mail before the appearance of any defendant. Therefore, service was improper.

CONCLUSION

            Plaintiff’s motion for trial preference is DENIED.