Judge: Michael J. Strickroth, Case: 2022-01266305, Date: 2023-08-07 Tentative Ruling

Motion for Preference

Plaintiff’s Motion for Trial Preference is GRANTED.

Code of Civil Procedure section 36(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.”

Plaintiff’s complaint was filed on 6/22/22, alleging causes of action against Defendant for (1) domestic violence, (2) intentional infliction of emotional distress, (3) false imprisonment, and (4) negligent infliction of emotional distress.

In support of the motion, Plaintiff declares the following:

“3. I was born January 12, 1947, making me 76 years old.

4. I have multiple health issues, which are as follows:

a. High blood pressure;

b. High cholesterol;

c. Psoriasis;

d. Ongoing mental health issues, including intrusive thoughts, related to years of verbal, emotional and financial abuse by Defendant. Furthermore Defendant is 75 years old and has a history of back surgeries and alcoholism.”

As the plaintiff in this lawsuit, Plaintiff has a substantial interest in the action under section 36, subdivision (a)(1). Plaintiff has shown she is over 70 years of age and her health is such that preference is necessary to prevent prejudicing her interest in the litigation.

Defendant contends setting trial within 120 days will prejudice his ability to complete discovery. However, Defendant acknowledges Plaintiff served responses to written discovery in February 2023, and no discovery motions have been filed. Defendant served subpoenas to third parties in June 2023. In light of the status of discovery and the issues in this lawsuit, the Court expects any remaining discovery can be completed if trial preference is granted. 

Code of Civil Procedure section 36(f) states,

“(f) Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party's attorney, or upon a showing of good cause stated in the record. Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party.”

Therefore, the Court will set trial for a date within 120 days pursuant to Code of Civil Procedure section 36(f). The parties shall appear at the hearing to propose a mutually agreeable trial date within 120 days on a Monday, at 9 AM, on or before December 4, 2023.

Plaintiff to give notice.