Judge: Mark H. Epstein, Case: 24SMCV03221, Date: 2024-12-30 Tentative Ruling

Case Number: 24SMCV03221    Hearing Date: December 30, 2024    Dept: I

The matter is here on a motion for trial preference.  Plaintiff’s counsel asserts that plaintiff Montgomery is over 90 years old and, given that age, it is self-evident that her health is failing and that trial must be soon in order to allow her to participate.  The opposition suggests that there is no proof that she is over 90 or that her health is failing.  The court finds both of those arguments to be without merit.

The defense raises a different argument, though, that the court believes is very troubling.  Quoting from Montgomery’s deposition, it does not appear that she is aware that she is a plaintiff and she does not want to be a plaintiff.  The court needs to inquire about this.  The court will not force a party to be a plaintiff against that party’s will.  Given the very clear deposition, the court will need to inquire of plaintiff’s counsel whether plaintiff was made aware that she was a plaintiff before suit was filed and if so, for an explanation of the deposition.  Further, if plaintiff wants to withdraw as a party (leaving another plaintiff, as the court understands it, but not one entitled to preference), then the court will inquire as to whether the preference motion is proper.  If the answer is that plaintiff is not capable of knowing, then the court needs to know whether a GAL needs to be appointed.  In either case, the court is not going to set a trial date until it knows who the plaintiff is.  Until that is resolved, the motion for trial preference is DENIED.