Judge: Matthew C. Braner, Case: 37-2023-00020721-CU-NP-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 14, 2023

12/15/2023  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Non-PI/PD/WD tort - Other Motion Hearing (Civil) 37-2023-00020721-CU-NP-CTL WALCHER VS MFIB LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiffs Laura Walcher and Robert Walcher's motion for preference is DENIED without prejudice.

The court will disregard the declaration of Robert Walcher submitted on reply. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 ['The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.'].) Code of Civil Procedure section 36, subdivision (a), states: (a) A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole.

(2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.

Here, both Plaintiffs unquestionably have an interest in this action as a whole. However, Plaintiffs have failed to make the required showing that either or both will suffer prejudice if a trial preference is not granted.

Mrs. Walcher attests she is 86 years of age and suffers from a history of Supraventricular tachycardia, Morton's neuroma, cataracts, elevated cholesterol, heart issues, and 'emotional concerns.' Mrs.

Walcher also attests that her husband, Mr. Walcher, is 88 years of age and has been diagnosed with kidney cancer. This evidence falls well short of the threshold showing of prejudice needed to obtain a trial preference. Most importantly, it is not clear from the evidence provided whether Plaintiffs' health issues are stable or worsening; in this regard, a declaration from a health professional might go a long way towards making the required showing.

Accordingly, the motion is denied without prejudice.

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