TENTATIVE RULING

Plaintiff Jearald Cable’s Motion for Trial Preference is DENIED.

Plaintiff Jearald Cable 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 Jearald Cable (“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 Ludgerus Bernhard Inholte (“Defendant”) opposes the motion on the ground that Plaintiff does not personally or directly own any property at issue in this case, and there is a demurrer pending, such that trial would occur mere days after the demurrer hearing.

It is undisputed that Plaintiff is 88 years of age. (Mot., Cable Decl. ¶ 2.) Plaintiff also states that he has “experienced cognitive decline that has impaired [his] capacity to recall facts, names, and dates,” which “will prejudice [his] ability to testify to the facts of the case and prejudice [his] interest in the case.” (Ibid.) Plaintiff further states that his diagnosis of prostate cancer and heart issues raise concerns about the possible effect on his life expectancy and ability to testify effectively. (Mot., Cable Decl. ¶ 3.) 

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, and simply stating that Plaintiff is suffering from cognitive decline is insufficient to establish that his interest will be prejudiced due to this condition. 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 Jearald Cable’s Motion for Trial Preference is DENIED.