Judge: Mark A. Young, Case: 22STCV20113, Date: 2023-02-22 Tentative Ruling

Case Number: 22STCV20113    Hearing Date: February 22, 2023    Dept: M

CASE NAME:           Weiss, v. Uber Technologies Inc., et al.

CASE NO.:                22STCV20113

MOTION:                  Motion for Trial Preference

HEARING DATE:   2/23/2023

Legal Standard

            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 the risk posed of that party's death or incapacity if¿trial¿is delayed. (CCP § 36(a).) However, if the factors are shown, the Court “shall” grant preference.  

            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.) 

            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; 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.”].) Thus, the Court¿generally focuses on the moving parties’ burden, rather than striking a balance between the conflicting interests of opposing litigants. That said, the Court may not set a trial so early as to deprive defendant of reasonable opportunity for discovery or pretrial preparation, as this would violate due process of law. (Roe v. Superior Court¿(1990) 224 Cal.App.3d 642, 643;¿Peters v. Superior Court (1989) 212 Cal.App.3d 218, 227.)  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).) 

Analysis

Plaintiff asserts that he is entitled to preference for trial setting under Code of Civil Procedure sections 36(a) and (e). Plaintiff is over the age of 70, as he is currently 76 years old. (Weiss Dec., ¶ 2; see also, Emrani Dec., ¶ 2.)  Furthermore, Plaintiff has a substantial interest in the litigation as the sole plaintiff. The sole issue is whether Plaintiff demonstrates that his health is such that a preference is necessary to prevent prejudicing his interest in this litigation.

Plaintiff argues that if trial is delayed, his instant injuries, history of heart disease and advanced age will likely preclude his material participation at trial. Plaintiff provides that because of the subject incident, he sustained serious lumbar injuries. (Weiss Dec., ¶ 4; Emrani Dec., ¶ 4.) Moreover, Plaintiff has suffered from coronary artery disease for the past decade and had coronary stenting. (Weiss Dec., ¶¶3-5; see also, Emrani Dec., ¶¶ 3-5.) In September 2021, Plaintiff was diagnosed with deep vein thrombosis and was prescribed Xarelto. Plaintiff’s treating cardiologist Dr. William Mandel noted that Plaintiff was hospitalized for deep vein thrombosis (DVT) despite his prescription medication.

However, There is no indication in the submitted declarations and exhibits that Plaintiff should not expect to live to the current trial date, or that he risks deteriorating such that he cannot meaningfully participate in trial. The medical records indicate that he cannot lift “heavy weights” due to his pain, but otherwise can look after himself normally and engage in everyday life activities without assistance. (See Weiss Decl., Ex. 3.) With this evidence, Plaintiff failed to demonstrate that his health is such that a preference would be necessary to avoid prejudice.

Accordingly, Plaintiff’s motion is DENIED.