Judge: Mark A. Young, Case: 24SMCV04984, Date: 2025-05-27 Tentative Ruling

Case Number: 24SMCV04984    Hearing Date: May 27, 2025    Dept: M

CASE NAME:           Ballas, et al., v. AME-GYU Co. Ltd.

CASE NO.:                24SMCV04984

MOTION:                  Motion for Trial Preference

HEARING DATE:   5/27/2025

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 find as a matter of fact 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¿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.”].) Thus, the Court¿generally 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).)

Analysis

Plaintiff Sheryl Ballas and Jack Ballas move for trial preference based on Sheryl Ballas’ age and health.

It is undisputed that Sheryl is 80 years of age and has a substantial interest in the action as a whole. However, the submitted declarations do not establish Ms. Ballas’ prognosis. Counsel explains that as a result of the subject incident, Plaintiff underwent a left hemiarthroplasty and laminectomy. (Contreras Decl., ¶ 3.) Counsel observes that she sustained serious trauma as a result of the Subject Incident and continues to require a considerable amount of medical treatment. (Id., ¶ 4.) Counsel explains that the recent loss of her home in the fires, as well as a second fall, have “complicated” her recovery. (Id., ¶4.) Counsel surmises that given her age, time is of the essence. (Id.) Otherwise, Counsel only offers the conclusion that Ms. Ballas’ health is such that preference is necessary to prevent prejudicing her interest in the litigation. (¶ 5.) The statements fail to show a risk that Ms. Ballas will pass away or become incapacitated prior to the July 20, 2026, trial¿date. The declarations also do not suggest that she will be inhibited in her ability to meaningfully participate in this action at any point prior to trial. Thus, Plaintiffs fail to show the second factor of section 36(a).

Accordingly, the motion is DENIED without prejudice.