Judge: John C. Gastelum, Case: 20-01166345, Date: 2023-08-01 Tentative Ruling

(1) Motion for Preference (2) TSC

Tentative Ruling:  Plaintiffs’ Motion for Preference is GRANTED.  Plaintiffs established that preference is mandatory pursuant to Code of Civil Procedure section 36.

Plaintiffs to give notice.

Plaintiffs move for trial preference pursuant to Code of Civil Procedure section 36(a) because Plaintiff Jean Marie Zenter is 95 years old and in hospice care.

Code of Civil Procedure section 36(a) states:

“(a) 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, subd. (a) [emphasis added].)

Code of Civil Procedure section 36.5 states:

“An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36.”  (Code Civ. Proc., § 36.5.)

“There can be little argument that 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. Superior Court (1993) 16 Cal.App.4th 521, 532; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 696 [“The Legislature has determined that certain classes of litigants—those over 70 with health problems and those under 14 who have suffered personal injury or parental death—should be ensured timely access to the courts.”].)

“Elderly litigants are clearly entitled to have their case effectively tried and to the opportunity to enjoy during their own lifetime any benefits received.”  (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1086, modified (Aug. 17, 1989), modified (Aug. 23, 1989).)

“Such a preference is not only necessary to assure a party’s peace of mind that he or she will live to see a particular dispute brought to resolution but it can also have substantive consequences.”  (Looney v. Superior Court (1993) 16 Cal.App.4th 521, 532.)  “The party’s presence and ability to testify in person and/or assist counsel may be critical to success. In addition, the nature of the ultimate recovery can be adversely affected by a plaintiff's death prior to judgment.”  (Ibid.)

“Application of these rules of construction to subdivision (a) of section 36 compels the conclusion that the Legislature intended it to be mandatory.”  (Rice v. Superior Court (1982) 136 Cal.App.3d 81, 86–87; Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085–1086, modified (Aug. 17, 1989), modified (Aug. 23, 1989) [“Accordingly, subdivision (a) of section 36 is mandatory and absolute in its application in civil cases whenever the litigants are 70 years old.”].)

“The trial court has no power to balance the differing interests of opposing litigants in applying the provision.”  (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085–1086, modified (Aug. 17, 1989), modified (Aug. 23, 1989); Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535 [“Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted. No weighing of interests is involved.”].)  “The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations.”  (Ibid.)

“Mere inconvenience to the court or to other litigants is irrelevant.”  (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085, modified (Aug. 17, 1989), modified (Aug. 23, 1989).)  “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.”  (Ibid.)

Here, Plaintiffs submitted the declaration of Plaintiff Amber Smith in support of the Motion for Preference.  Defendant does not appear to dispute that Plaintiff Jean Marie Zentner qualifies for preference in that she meets the requisite age and health requirements.  Rather, Defendant contends that Plaintiff Jean Marie Zentner does not have a substantial interest in the litigation and the fact that she is a Plaintiff does not in itself satisfy the requirement that she have a substantial interest in the litigation.  Defendant compares Plaintiff Jean Marie Zentner’s interest to that of State Farm in claiming that she does not have a substantial interest in the lawsuit and claims that she has been compensated by State Farm – although this was not testified to in a declaration and therefore the court should not consider such arguments.  Importantly, Defendant does not cite to any legal authority specifically addressing the meaning of “substantial interest” as applied to section 36.

Plaintiff Jean Marie Zentner has substantial interests in the lawsuit.  She claims emotional damages for her house being burned down by a house fire and the prayer for relief also seeks general and special damages, pre-judgment interests, incidental, compensatory, and consequential damages and interests as well as cost of suit.  Plaintiff Jean Marie Zentner was unable to live in her house during her final years with her husband and was forced to uproot from her 45 year home at the approximate age of 90.

Plaintiff Jean Marie Zentner is 95 and on hospice, making her a prime candidate for preference.  The spirit of the statute is to give individuals their day in court before they pass so that they may enjoy during their own lifetime any benefits received.

The Court GRANTS the Motion for Preference.