TENTATIVE RULING

Plaintiff Gloria Vitto’s Motion for an Order Granting Preference in Setting Case for Trial is DENIED without prejudice.

Plaintiff Gloria Vitto 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 Gloria Vitto (“Plaintiff”) moves for trial preference on the ground that she is over 70 years of age, she has a substantial interest in the action, and her health is such that preference is necessary to prevent prejudicing her interest in the litigation.

It is undisputed that Plaintiff is 87 years of age. (Mot., Shea Decl. ¶ 3.) Plaintiff has provided a declaration from her treating neurologist, Yuvraj Grewal, M.D., who states that Plaintiff suffered from several injuries and is in a deteriorating condition, and her medical prognosis at this time is guarded, placing her at substantial risk of prejudice without a preferential trial date. (Mot., Grewal Decl. ¶ 12.) Plaintiff also provides a declaration from her attorney, who states the same. (Mot., Shea Decl. ¶ 10.)

While Plaintiff’s physician’s declaration and Plaintiff’s counsel’s declaration demonstrate that Plaintiff suffers from certain health conditions, the information provided does 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 has a guarded medical prognosis or physical condition is insufficient to establish that her interest will be prejudiced due to her health conditions. Put simply, Plaintiff has failed to establish that her health is such that a preference is necessary to prevent prejudicing her 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 Gloria Vitto’s Motion for an Order Granting Preference in Setting Case for Trial is DENIED without prejudice.