Judge: Melissa R. Mccormick, Case: "Budai v. T-Mobile, et al.", Date: 2022-12-15 Tentative Ruling

Plaintiff Mary Budai’s Motion for Preference

Plaintiff Mary Budai moves for trial preference pursuant to California Civil Procedure Code § 36(a).  Defendant VORC Quality Services, LLC opposes plaintiff’s motion.  For the following reasons, plaintiff’s motion is denied.

Section 36(a) states that 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, and (2) the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.  Upon the granting of a preference motion, the court “shall set” the matter for trial not more than 120 days from that date.  Id. § 36(f).  An affidavit submitted in support of a motion for preference under section 36(a) may be signed by the attorney for the party seeking preference based on information and belief as to the medical diagnosis and prognosis of any party.  Cal. Civ. Proc. Code § 36.5. 

Plaintiff has submitted evidence that she is 91 years old and the plaintiff in this case.  Reagan Decl. ¶ 3.  Plaintiff has not submitted evidence that her health is such that a trial preference is necessary to prevent prejudicing plaintiff’s interest in the litigation.  Plaintiff’s counsel attaches to his declaration a copy of a CACI life expectancy table that counsel states reflects that “if [plaintiff] was completely healthy, [plaintiff] would have at best an estimated 4.5 more years to live.”  Id. ¶ 4 & Ex. 1.  Plaintiff’s counsel’s declaration does not state that plaintiff has any health condition(s) requiring a trial preference, and does not describe any medical diagnosis or prognosis.  Reagan Decl. ¶ 5.  Plaintiff’s counsel’s declaration states plaintiff’s “health has been declining” since the August 5, 2021 incident from which this case arises, and that plaintiff’s “advanced age and declining health pose the risk of greatly prejudicing her ability to litigate and try this case.”  Reagan Decl. ¶ 5; see also Reagan Reply Decl. ¶ 2 (stating that a result of hip replacement surgery, plaintiff has lost weight, has difficulty walking, experiences muscle weakness, and feels ongoing pain).  These general and speculative statements do not provide sufficient facts demonstrating that plaintiff’s health is such that trial preference is necessary to prevent prejudicing plaintiff’s interest in the litigation.

The trial remains scheduled for October 23, 2023 at 9:00 a.m. in Department C13.

Defendant VORC Quality Services, LLC to give notice.