TENTATIVE RULING

Plaintiff Pirooz Yadegar’s Motion for Preferential Trial Setting is DENIED.

Plaintiff Pirooz Yadegar 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 Pirooz Yadegar (“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. Defendants/Cross-Complainants Hunter Tillma Trost and Cynthia Rucker Trost and Defendant Scott Tillma Trost oppose the motion on the ground that Plaintiff has failed to demonstrate that his illnesses are causing his health condition is such that an expedited trial is necessary to prevent prejudicing his interests.

It is undisputed that Plaintiff is 81 years of age (see Mot., Yadegar 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 represents that he suffers from high blood pressure, has a valvular risk factor for hypercholesterolemia, suffers hypertension, has a descending aorta expanded to 4.6 requiring surgery, has a hard time hearing, is unable to speak with clarification, is suffering muscle atrophy, is very weak, and has general fatigue. (Mot., Yadegar Decl. ¶ 4.) Plaintiff’s counsel attests to the same condition, and counsel states that Plaintiff’s age and health is such that there is a risk that Plaintiff may not live until a trial date at the end of this year or next year if preference is not granted. (Mot., Seuthe Decl. ¶ 9.)

While Plaintiff’s declaration and Plaintiff’s counsel’s declaration demonstrate that Plaintiff suffers from certain health conditions, the declarations 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 declarations how Plaintiff’s health conditions affect Plaintiff’s ability to participate in the proceedings or why an expedited trial is necessary. 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 Pirooz Yadegar’s Motion for Preferential Trial Setting is DENIED.