TENTATIVE RULING

Plaintiff Narayan De Vera’s Motion for an Order Granting Preferential Trial Date is DENIED.

Plaintiff Narayan De Vera to give notice.

REASONING

“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).) A motion for preference must be “supported by a declaration of the moving party that all essential parties have been served with process or have appeared.” (Code Civ. Proc., § 36, subd. (c)(1).) Further “[a]n affidavit submitted in support of a motion for preference under [this section] 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.” (Code Civ. Proc., § 36.5.) “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 and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party’s attorney, or upon a showing of good cause stated in the record.” (Code Civ. Proc., § 36, subd. (f).)

Plaintiff Narayan De Vera (“Plaintiff”) moves for trial preference on the ground that he is over 70 years of age, has a substantial interest in the action, and his health is such that preference is necessary to prevent prejudicing his interest in the litigation. Defendant/Cross-Complainant C & L Construction Inc. and Defendants Moore Foundations Inc. and Jose Jimenez oppose the motion on the ground that Plaintiff has failed to demonstrate that his illnesses are causing his health to deteriorate to such a degree that an expedited trial is critical to prevent prejudicing his interests.

It is undisputed that Plaintiff is 80 years of age (see Mot., Vespermann Decl. ¶ 3), and he has a substantial interest in this action being that he is a plaintiff in the action. As to Plaintiff’s health, Plaintiff’s counsel represents that since the date of the accident, Plaintiff has had surgeries on his left hip and left tibia, a skin graft operation on his left hand and forearm, he was hospitalized for 12 days, he has been receiving full time treatment and care, Plaintiff is almost entirely bedridden and requires care and assistance in dressing, eating, and bathing, his wounds and scabbing persist to the point that his skin continually peels off his body, and he will continue to require 24-hour medical care needs for the foreseeable future. (Mot., Vespermann Decl. ¶¶ 7-12.) Plaintiff also provides a comprehensive orthopedic examination report from P. Richard Emmanuel, MD, describing Plaintiff’s orthopedic status on April 19, 2024, and opining that Plaintiff requires care beyond what he is currently receiving. (Mot., Vespermann Decl. ¶¶ 13-14, Ex. 1.) Plaintiff’s counsel states that Plaintiff will not be able to afford the intensive 24-hour care he requires without compensation from this lawsuit, and Plaintiff’s caretakers and representatives will have difficulty obtaining the care he needs on a lien basis due to the level of treatment necessary. (Mot., Vespermann Decl. ¶¶ 15-16.)

While Plaintiff’s counsel’s declaration and the report from Dr. Emmanuel demonstrate that Plaintiff suffers from certain health conditions, the report, Plaintiff’s counsel’s declaration, and the illnesses described therein do not establish that a preferential trial date is necessary, as there is no evidence that preference is necessary to prevent prejudicing Plaintiff’s interest in the litigation. It is not clear from the report or Plaintiff’s counsel’s declaration how Plaintiff’s health conditions affect Plaintiff’s ability to participate in the proceedings or why an expedited trial is necessary. A need for funds to continue medical care is not a basis for ordering a preferential trial date. Put simply, Plaintiff has failed to establish that his health is such that a preference is necessary to prevent prejudicing his interest in the litigation, such that Plaintiff has not satisfied the second element of Code of Civil Procedure section 36, subdivision (a), to warrant an expedited trial. Accordingly, Plaintiff Narayan De Vera’s Motion for an Order Granting Preferential Trial Date is DENIED.

Evidentiary Objections

Defendants Moore Foundations Inc. and Jose Jimenez object to certain statements within the declaration of Wyatt Vespermann. The objections are OVERRULED. (See Code Civ. Proc., § 36.5 [“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”].)

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