TENTATIVE RULING

Cross-Defendant/Cross-Complainant Norman J. Berg’s Motion to Advance Trial Date Pursuant to California Code of Civil Procedure §36(a) is DENIED.

Cross-Defendant/Cross-Complainant Norman J. Berg 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).)

Cross-Defendant/Cross-Complainant Norman J. Berg (“Berg”) 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. Defendants/Cross-Defendants Trevor Lee Shepard and Melissa B. Shepard and Defendant/Cross-Complainant/Cross-Defendant Todd Curtis Miller oppose the motion on the ground that the case is not yet at issue, Berg’s interest in this action is not clear, and Berg’s health is not such that preference is warranted.

It is undisputed that Berg will be 80 years of age in April 2025. (Mot., Harper Decl. ¶ 5.) Berg’s counsel also states that Berg suffers from severe obesity, diabetes mellitus (type 2), sleep apnea, dyspnea, hypoxia, and related health issues. (Mot., Harper Decl. ¶ 6.) 

While Berg’s counsel’s declaration demonstrates that Berg suffers from certain health conditions, the 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 Berg’s interest in the litigation. It is not clear from the declaration how Berg’s health conditions affect his ability to participate in the proceedings or why an expedited trial is necessary, and simply stating that Berg is suffering from several health issues is insufficient to establish that his interest will be prejudiced due to the identified conditions. Put simply, Berg has failed to establish that his health is such that a preference is necessary to prevent prejudicing his interest in the litigation, such that Berg has not satisfied the second element of Code of Civil Procedure section 36, subdivision (a), to warrant an expedited trial. Accordingly, Cross-Defendant/Cross-Complainant Norman J. Berg’s Motion to Advance Trial Date Pursuant to California Code of Civil Procedure §36(a) is DENIED.