Judge: Mark A. Young, Case: 19SMCV02000, Date: 2022-08-09 Tentative Ruling
Case Number: 19SMCV02000 Hearing Date: August 9, 2022 Dept: M
CASE NAME: Block, v. Humble, et al.
CASE NO.: 19SMCV02000
MOTION: Motion for Trial Setting and Preference
HEARING DATE: 8/9/2022
Legal Standard
“A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared.” (CCP, § 36(c).) A party who is 70 years of age or older, or who reach that age during pendency of the action, may be entitled to preference if they establish to the court's satisfaction that: 1) he has a “substantial interest in the action as a whole”; and 2) his health is “such that preference is necessary to prevent prejudicing the party's interest in the litigation.” (CCP, § 36(a), (c)(2).) In contrast to minor plaintiffs, trial priority is not mandatory and absolute merely because one of the parties is age 70. The court has discretion to determine the extent of that party's interest and find as a matter of fact the risk posed of that party's death or incapacity if trial is delayed. (CCP § 36(a).) That said, if the factors are shown, the Court “shall” grant preference.
A trial must be set within 120 days even if opposing parties have not completed discovery or pretrial preparations. (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1086.) Mere inconvenience to the court or to other litigants is irrelevant. (Rice v. Superior Court (1982) 136 Cal.App.3d 81, 89-94; but see Polibrid Coatings, Inc. v. Superior Court (2003) 112 Cal.App.4th 920, 923-924 [when brought into case after over half the time to litigate has passed, party should be given “at least enough time” to “reasonably complete discovery and bring a summary judgment motion.”].) The Court thus focuses on the moving parties’ burden, rather than striking a balance between the conflicting interests of opposing litigants.
A declaration supporting a motion for Code of Civil Procedure section 36(a) preference “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.” (CCP § 36.5.) Accordingly, an attorney's declaration can consist entirely of hearsay and conclusions. (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534.) Moreover, the court has the general discretionary power to grant priority to any case upon a showing of good cause, i.e. “that the interests of justice will be served by granting this preference.” (CCP § 36(e).) “[T]he discretion to grant or deny a preferential trial setting rests at all times in the sound discretion of the trial court in light of the totality of the circumstances.” (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 344.)
Defendants met their burden of showing Humble is over the age of 70 and has a substantial interest in this action. Humble is an owner and board member of the 10th Street Homeowners Association. All of the issues raised in the operative complaint either directly relate to action taken by Humble or by actions he participated in as a member of the Board. Thus, he has a substantial interest in the action as a whole.
There is less certainty as to whether Humble’s health is such that his interest in the litigation would be prejudiced absent preference. Defendant has been diagnosed with congestive heart failure, hereditary and idiopathic peripheral neuropathy, and Myeloproliferative Disorder. (Levine Decl., ¶ 3.) Defendant informed counsel that it is becoming increasingly more difficult for him to breathe due to his conditions, including a partially collapsed lung. (Id. ¶ 4.) Humble believes that this will continue to get worse over time. (Id.) As such, the Court believes that Humble’s prognosis threatens Humble’s litigation interest without a 120-trial preference.
This preference is within the Court’s discretion to grant or deny. While Humble has not made the strongest showing, the fact that he will deteriorate over time and suffers from numerous serious conditions is sufficient grounds to allow the preference. Moreover, this matter has been pending since November 13, 2019 (not including a previous, similar action filed by Plaintiff on February 20, 2018). Accordingly, Defendant’s motion for trial preference is GRANTED. Trial will commence prior to December 7, 2022.