Judge: Mark H. Epstein, Case: 23SMCV05609, Date: 2024-05-15 Tentative Ruling

Case Number: 23SMCV05609    Hearing Date: May 15, 2024    Dept: I

The motion is DENIED WITHOUT PREJUDICE.  Plaintiff filed a personal injury case.  Plaintiff’s motion is brought pursuant to Code of Civil Procedure section 36 subdivision (a).  That statute provides that a preference shall be granted and a trial held within 120 days if the moving party is over 70 and has a substantial interest in the action and the “health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.”  Only that last element is in play.  Unlike most motions, this motion can be supported by a hearsay declaration from counsel based on information and belief as to the medical diagnosis and prognosis.  It can be conclusory.

The problem here is that the declaration does not quite go far enough.  Plaintiff has established advanced age and various health issues.  However, there is no prognosis at all.  Without a prognosis, the required showing has not been made.  The prognosis must be such that the party’s health is such that the preference is necessary to prevent prejudicing her interest in the litigation.  (Fox v. Superior Court (2018) 21 Cal.App.5th 529.)  That may be shown by another attempt.

Alternatively, the court can exercise its discretion under subdivision (e).  Given plaintiff’s age and medical condition, that might be the better way to go.  The court will discuss it with the parties.