Judge: Mark H. Epstein, Case: 24SMCV03791, Date: 2024-10-14 Tentative Ruling

Case Number: 24SMCV03791    Hearing Date: October 14, 2024    Dept: I

This is a motion for calendar preference brought pursuant to CCP section 36(a).  That statute states that a motion for calendar preference shall be granted if the moving party can show that the moving party (1) has a substantial interest in the litigation; (2) is over 70 years of age; and (3) a preference is necessary to prevent prejudice to the moving party due to the party’s health.  The latter showing can be made based on a hearsay declaration from counsel; there need not be admissible evidence.  If the motion is granted, trial must be set within 120 days of the order granting the motion.

No one disputes the first two elements here.  The fight is over the third.  According to the supporting declaration, in February 2023, plaintiff underwent a procedure in which a pacemaker was implanted and in March 2023, plaintiff was given a stent.  The declaration states that plaintiff’s health is being monitored.  In opposition, the argument is that there is no showing that plaintiff cannot await trial in the regular course.  While plaintiff is indeed old (86 years old), the medical procedures were 18 months ago and there is no evidence that plaintiff’s health is declining other than through the normal aging process.  In other words, defendant argues, there is nothing here showing the urgency of a trial that is needed to trigger the statute, citing to Fox v. Superior Court (2018) 21 Cal.App.5th 529.  There are also the usual arguments that granting the motion will prejudice the defense and that it violates due process because discovery cannot be done quickly enough.

As to the latter arguments, the court rejects them.  There is no “due process” right to discovery at all, at least in the constitutional sense and at least if both parties are afforded the same discovery rights.  Discovery is a statutory right.  A right given by the Legislature can be limited or taken away by the Legislature.  The court sees no due process issue here.  As to prejudice, the issue is not at play.  If the statutory requirements are met, the trial setting is mandatory.  The Legislature has already weighed the potential prejudice and struck the balance.  The court is not free to disregard that determination and re-set the scales.  That assumes, of course, that plaintiff cooperates in discovery in good faith.  While discovery is limited due to timing, it is still available.  The court does believe that the Legislature intended that moving party engage in discovery and provide discovery in good faith in order to get the benefit of the fast track to trial.  But the court has no reason to believe that plaintiff will do anything other than act in good faith.

So that brings the court back to whether the showing has been made.  The court agrees that it likely has not (quite) been made on these papers.  But the court notes that such is at best a temporary reprieve.  There is nothing in these papers that suggests that plaintiff could not make a showing this very day—all that is needed is a bit more detail showing declining ability and the approximate pace thereof.  The court therefore sees little purpose in denying the motion outright.  Fortunately, the court does have an alternative.  The court has discretion over its own calendar and is prepared to move this case forward with great speed.  After all, no one is disputing plaintiff’s age, and the court can take judicial notice that at 86, things can happen and happen quickly.  Further, while there appears to be no medical crisis on the immediate horizon, plaintiff does have heart issues that could crop up quickly and without warning.  While the court hopes such will not be the case, the court can hardly be sure of it.  Right now, the court is setting trials in the May 2026 time frame.  That is simply too far out for this case.  The court will suggest and discuss with the parties setting a trial date in the first part of 2025.  Even if the subdivision (a) motion were granted, the trial would likely not be set until some time in February.  The court was thinking more like the April/May time frame.  That is a bit longer than the subdivision (a) period, but not really much longer than were plaintiff to re-file the motion with a bit more of a showing.  It also mitigates some of defendant’s concerns and, quite frankly, works better for the court, which already has a very full first quarter trial calendar, with about 6 matters set each week, some of which are quite old and running on the five-year statute.  The court will see whether such a solution might work.  Of course, as with the motion for preference, this assumes that plaintiff responds to discovery quickly (and defendant does as well).

The court will do its best to work with everyone’s schedule, but the court notes that it can only do so much.  The court has to keep its own sanity.  And at the same time, the court notes that it considers the matter to be a priority even if not under 36(a).  The court assumes plaintiff will be very flexible.  Defendants will have to be flexible as well even if that turns out to be (very) inconvenient to them.