Judge: H. Jay Ford, III, Case: 23SMCV06002, Date: 2024-11-05 Tentative Ruling

Case Number: 23SMCV06002    Hearing Date: November 5, 2024    Dept: O

  Case Name:  Adelstein v. An Apple a Day, LLC, et al.

SUBJECT:                 MOTION FOR TRIAL PREFERENCE

MOVING PARTY:   Plaintiff Adrienne Edelstein

RESP. PARTY:         Defendant Xirou Zhang

TENTATIVE RULING

            Plaintiff Adrienne Edelstein’s Motion for Trial Preference is DENIED, without prejudice. Plaintiff Adrienne Edelstein’s counsel does not provide a declaration satisfying the statutory requirement of CCP § 35(a) to show the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.

REASONING

According to CCP §36(a), “[a] party to a civil action who is over the age of 70 years may petition the court for a preference, which the court shall grant if the court makes all 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, subd. (a).)

An attorney declaration for trial preference under CCP §36(a) is sufficient and may be made on information and belief.  (Code Civ. Proc., § 36.5.)  If a motion for trial preference is granted, the court shall set the trial date not more than 120 days from granting of the motion. (Code Civ. Proc., § 36, subd. (f).) 

            As the Court in Fox v. Superior Court (2018) 21 Cal.App.5th 529 explained, subsections (a) and (d) are entirely distinct in their requirements for trial preference: “The standard under subdivision (a), unlike under subdivision (d), which is more specific and more rigorous, includes no requirement of a doctor's declaration. To the contrary, a motion under subdivision (a) may be supported by nothing more than an attorney's declaration based upon information and belief as to the medical diagnosis and prognosis of any party.”  (Fox, supra, 21 Cal.App.5th at 534.)  Section 36(a) also does not require imminent death or incapacity for trial preference: “Section 36, subdivision (a), says nothing about death or incapacity.  Whether there is ‘substantial medical doubt of survival ... beyond six months’ is, to be sure, a matter of specific concern under subdivision (d), but the relevant standard under subdivision (a) is more open-ended. The issue under subdivision (a) is not whether an elderly litigant might die before trial or become so disabled that she might as well be absent when trial is called. Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that that party's ‘health ... is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.’”  (Id.) 

            Plaintiff Adrienne Edelstein (“Edelstein”) counsel, Greyson Goody (“Goody”), submits a declaration with the motion for trial preference providing a copy of Edelstein’s driver’s license, showing that that Edelstein is 90 years old, thus over the age of 70. (See Goody Decl., ¶ 4; Ex. 2.)  Edelstein is the sole Plaintiff in the matter thus she has a substantial interest in the action.

Goody attaches a copy of a clinical records research study purportedly to show that Goody’s health “is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” (Code Civ. Proc., § 36, subd. (a).) Goody does not declare that Edelstein’s health is in any specific state to warrant the trial preference, thus Goody does not meet the statutory requirements under CCP § 36(a). Goody must support his argument that Edelstein’s health is an issue with “an attorney's declaration based upon information and belief as to the medical diagnosis and prognosis of any party.” (Fox, supra, 21 Cal.App.5th at 534.) Simply attaching a research study, with nothing more, for what the Court can only guess is to show that the age of Edelstein will be impacted by the alleged trauma at issue will not suffice. Goody must provide a declaration directly stating as such. Finally, none of facts argued in the Reply are supported by any declaration.

            Plaintiff’s Motion for Trial Preference is DENIED.