TENTATIVE RULING

Plaintiff Kristian Herzog’s Motion For An Order of Trial Preference California Code of Civil Procedure Section 36 is DENIED.

Plaintiff Kristian Herzog to give notice.

REASONING

“In its discretion, the court may . . . grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.” (Code Civ. Proc., § 36, subd. (d).) “Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.” (Code Civ. Proc., § 36, subd. (e).) 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).) “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 Kristian Herzog (“Plaintiff”) moves for trial preference on the ground that he suffers from a life-threatening condition that raises substantial medical doubt of his survival beyond six months. Defendant Big 5 Corp. (“Defendant”) opposes the motion on the ground that Plaintiff’s health is not such that preference is warranted, and Plaintiff delayed in filing this action and requesting trial preference.

Plaintiff provides evidence that he is 57 years old, he suffers from various injuries and health conditions, and his injuries in the incident at issue caused him to limit his physical activity, such that he has an increased risk for a fatal cardiovascular event. (Mot., Herzog Decl. ¶¶ 4-13.) Plaintiff provides a letter from his primary care physician stating the same and stating that he has requested that Plaintiff have his legal affairs up to date as soon as possible. (Mot., Herzog Decl. ¶ 15, Ex. 1.)

While Plaintiff’s declaration and the letter from his primary care physician demonstrate that Plaintiff suffers from certain health conditions, the declaration, letter, and the illnesses described therein do not establish that a preferential trial date is necessary, as it is not clear from the declaration how Plaintiff’s health conditions affect his ability to participate in the proceedings or why an expedited trial is necessary, and simply stating that Plaintiff suffers from several health issues is insufficient to raise doubt as to Plaintiff’s survival beyond six months. The motion, declaration, and letter also fail to provide a basis for concluding that the interests of justice will be compromised if a preferential trial date is not granted here. Notably, the trial is currently set to commence less than a year after the date of hearing on this motion, i.e., the trial date is not so far out that the Court can conclude as a matter of fact that Plaintiff will be unable to participate in the trial as scheduled. Put simply, Plaintiff has failed to establish that he suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months or that the interests of justice will be served by granting this preference. Accordingly, Plaintiff Kristian Herzog’s Motion For An Order of Trial Preference California Code of Civil Procedure Section 36 is DENIED.