Judge: Mark H. Epstein, Case: 22SMCV01304, Date: 2023-02-06 Tentative Ruling

Case Number: 22SMCV01304    Hearing Date: February 6, 2023    Dept: R

Plaintiff is suing defendants over their treatment of her dog’s remains.  She seeks a trial preference pursuant to Code of Civil Procedure section 36.

That statute provides that the court “shall” grant a motion for trial preference if the moving party is over 70 years old and that party’s health is “such that a preference is necessary to prevent prejudicing the party’s interest in the litigation” unless the court finds that the moving party does not have a substantial interest in the case.  No one disputes that plaintiff is over 70 (she is 94).  Defendants question whether she has a substantial interest in the case, but the court cannot take that challenge seriously.  She is the only plaintiff—of course she has a substantial interest in the case.  Defendants suggest that plaintiff has not sought a trial preference in other cases, but the court fails to see how that is relevant; plaintiff is entitled to prioritize the cases.

In making the showing of prejudice, the Legislature has enacted an unusual statute.  The showing can be made by way of an attorney declaration based solely on hearsay.  (Code Civ. Proc. § 36.5.)  Accordingly, defendants’ objection to the declaration as being nothing but hearsay is meritless.  The Legislature certainly acted within its power in allowing a hearsay declaration to suffice, and that ends the hearsay inquiry.

What is a bit harder is that the declaration goes through a lot of medical issues, many of which have been extant for a long time.  In doing so, it misses the point.  The statute does not give a mandatory preference to someone over 70 with physical ailments—even very serious ones.  The showing must be that delay will prejudice the party.  So, for example, a party who has a disease that could result in death or incapacity in a short time can make the showing.  A party who has a deteriorating mental condition such that the party will not be able to give testimony in a short time can make the showing.  But a party who is in stable condition, even if there are lots of medical issues, cannot make the showing.  Of course, there need not be conclusive evidence, nor does the showing have to be that a delay will cause prejudice so severe that the party will become unavailable for trial.  What must be shown is that the delay will cause prejudice.  (Fox v. Superior Court (2018) 21 Cal.App.5th 529.)  The court has not seen an adequate showing here to meet the requirements under section 36(a), although a supplemental declaration might well do the trick.

But that does not end the inquiry.  Plaintiff also seeks preference under subdivision (e).  All that requires is a showing that the interests of justice will be served by granting the preference.  The declaration is sufficient for that.  Indeed, at 94 years of age time is a precious commodity to plaintiff.  The court will therefore GRANT the motion for a preference under subdivision (e).  While that does not guarantee a trial within 120 days, the court is inclined to set the trial at the earliest date available on the court’s calendar that comports with due process.  This case was filed in August 2022 and the motion was filed on January 9, 2023.  The court will inquire as to what discovery remains to be done and how quickly it can be done.  Plaintiff is admonished, though, that granting the motion imposes some duties on her.  If the trial is set in the very near future, the court would not expect her to seek extensions of time to respond to discovery.  The court would also expect her discovery responses to be full and complete and without the laundry list of boilerplate objections so often found.  In other words, if she wants to move quickly, the court will enable her to do so.  But she must do her part.