Judge: Mark A. Young, Case: 22SMCV02954, Date: 2023-04-27 Tentative Ruling

Case Number: 22SMCV02954    Hearing Date: April 27, 2023    Dept: M

CASE NAME:           Winokur v. Sky Blue Labrot

CASE NO.:                22SMCV02954

MOTION:                  Motion for Trial Preference

HEARING DATE:   4/27/2023

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 declaration supporting a motion for a 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.) 

“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.” (CCP, § 36(f).) 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.

Analysis

Plaintiff Joan Ann Wolf Winokur moves for preference for trial setting on grounds that she is 76, has a substantial interest in the case, and her health makes a preference necessary in order to prevent prejudice to Plaintiff interest in the lawsuit. The motion is unopposed.

There is no dispute that the first two factors are shown. Plaintiff verifies that she is 76 years old, and thus over the age of 70. Further, she certainly has a substantial interest in this action, as the sole plaintiff.  That said, the Court is not satisfied that her health makes a preference necessary to prevent prejudice to Plaintiff’s interest in the lawsuit. Plaintiff only provides a conclusory declaration that “she has advanced Parkinson’s disease, had recent knee replacement surgery, [is] a candidate for back surgery, and [has] serious health concerns.” (Winokur Decl., ¶ 3.) Her counsel states that she is “not substantially improving, [] her prognosis is guarded” and that there is a “legitimate concern that [Plaintiff] will deteriorate, and that she may not be able to effectively participate in legal proceedings if the trial is not commenced within the next few months.” (Kashani Decl., ¶ 4.) There is no substantive evidence that Plaintiff’s health condition, such as her Parkinson’s or other unspecified health concerns, would pose any risk of death or incapacity, such that she would be unable to assist counsel at trial. Plaintiff should present more specific evidence of her risk for deterioration, such that she would be prejudiced if trial is not set within 120 days.

Accordingly, the motion is DENIED without prejudice.