Judge: David A. Hoffer, Case: 30-2022-01245614, Date: 2023-05-15 Tentative Ruling

The motion by plaintiff Jesus Hernandez for trial preference pursuant to CCP §36(a) is DENIED, without prejudice.

Code Civ. Proc. §36(a) provides that, “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.”

Section 36 “was enacted for the purpose of assuring that an aged or terminally ill plaintiff would be able to participate in the trial of his or her case and be able to realize redress upon the claim asserted.”  (Looney v. Super. Ct. (1993) 16 Cal.App.4th 521, 532.)  The standard for granting the motion under subd. (a) does not require a doctor’s declaration. (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534). A motion under §36(a) may be supported by only an attorney’s declaration based upon information and belief as to the medical diagnosis and prognosis of a party. (Ibid.)

Plaintiff satisfied the first element of subd. (a), that he is over 70 years of age and has a substantial interest in the action as a whole.  (Trotter Decl., ¶3 – “Plaintiff is 83 years of age.”)

As to the second element, MP argues that “Plaintiff deserves to have his case heard on an expedited basis so that his rights may be protected before his health deteriorates further, or worse, before he passes away from his injuries or natural causes.”  (Motion at 4:7-9)  The attorney declaration claims that the plaintiff continues to suffer pain and limitations on his activities arising multiple orthopedic injuries.  (Trotter Decl. at ¶5)

However, Mr. Trotter does not state that plaintiff’s life expectancy has been reduced in any way.  Nor is there any indication that the plaintiff will not be able to participate in trial, regardless of when it takes place.  Although counsel does state that plaintiff suffers from various orthopedic injuries, there is no indication of the plaintiff being in poor overall health or unable to proceed if the trial is delayed. 

While the orthopedic injuries described by counsel are significant, it does not appear that the plaintiff’s interest in the litigation will be prejudiced in any way if preference is not granted.  Because this case does not meet the standard under CCP §36(a), the motion is denied (without prejudice to a future motion meeting this standard). 

Moving party is ordered to give notice of this ruling.