Judge: Elaine W. Mandel, Case: 22SMCV01792, Date: 2023-05-19 Tentative Ruling

Case Number: 22SMCV01792    Hearing Date: May 19, 2023    Dept: P

Tentative Ruling

Evans v. Stoll, Nussbaum & Polakov, APC, Case No. 22SMCV01792

Hearing Date May 19, 2023

Plaintiff Evans’ Motion for Priority Trial Setting

Plaintiff Evans, 92 years old, moves for trial preference (Cal. Code of Civ. Proc. §36(a)) in this legal malpractice action.

Under Cal. Code of Civil Procedure §36(a), a court will grant trial preference to a party to a civil action over 70 years old if the court finds both that the party has a substantial interest in the action as a whole and the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest.

Dennis Evans is over 70 years old and has a per se substantial interest in the litigation. He has not provided evidence that his health makes trial preference necessary. The only evidence is a declaration from Alexander Petale, plaintiff’s counsel, who states plaintiff is in good health, but “I have noticed a decline in [Mr. Evans’] ability to recall details, compared to his ability to do so from one year prior.” Petale declaration ¶4. Petale provides no detail as to this alleged decline. The defense objection to this opinion is sustained, as the attorney has no basis for this statement regarding plaintiff’s health/medical condition. He is neither a doctor nor medical provider. Motion DENIED.