Judge: Melissa R. Mccormick, Case: Kothari v. Desai, Date: 2022-10-13 Tentative Ruling

Plaintiffs Mira Kothari and Christian Michel’s Motion for Trial Preference

Plaintiffs Mira Kothari and Christian Michel move for trial preference pursuant to California Civil Procedure Code § 36(e).  For the following reasons, plaintiffs’ motion is denied.

Section 36(e) states that “[n]otwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.”  Cal. Civ. Proc. Code § 36(e).  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). 

Trial is scheduled for May 22, 2023.  Plaintiffs essentially seek with this motion to advance the trial date approximately three months.  Plaintiffs seek this relief not due to any alleged qualifying condition(s) of their own, but rather based on defendant Ashok Desai’s age and alleged health conditions.  Desai and defendant MBKV, LLC oppose plaintiffs’ motion.

Plaintiffs assert Desai is 82 years old.  Based on statements in plaintiffs’ respective declarations for which plaintiffs show questionable foundation, plaintiffs also argue Desai’s alleged “medical problems” have “presumably” worsened with the passage of time.  Brief at 3:17-18.  Assuming arguendo plaintiffs’ standing to bring this motion, and even crediting the hearsay and other statements described in Kothari’s declaration and Kothari’s opinions about the quality of Desai’s diet, plaintiffs have not established Desai’s health is such that a preference is necessary to prevent prejudicing Desai’s interest in the litigation, nor have plaintiffs demonstrated substantial medical doubt of Desai’s survival beyond six month.  See Cal. Civ. Proc. Code § 36(a), (d).  More fundamentally, plaintiffs have not demonstrated that the interests of justice will be served by granting trial preference.  Id. § 36(e).  Plaintiffs’ primary concern appears to be obtaining Desai’s testimony.  Plaintiffs have not set forth any reasons they cannot take Desai’s deposition.

The trial remains scheduled for May 22, 2023 at 9:00 a.m. in Department C13. 

Defendants to give notice.