Judge: Olivia Rosales, Case: 24NWCV02325, Date: 2024-10-02 Tentative Ruling

Case Number: 24NWCV02325    Hearing Date: October 2, 2024    Dept: F

Itnyre, et al. vs. Credit Union of Southern California, Case No. 24NWCV02325

This is a premises liability action. Plaintiffs, husband and wife, move for trial preference.

Code of Civil Procedure section 36, subdivision (a) provides, as follows: “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.”

Code of Civil Procedure section 36.5 provides that “An affidavit submitted in support of a motion for preference under [C.C.P. §36(a)] may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. The affidavit is not admissible for any purpose other than a motion for preference under [C.C.P. §36(a)].”

In its discretion, the court may also grant a motion for preference accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference. (Code Civ. Proc., § 36, subd. (d).)

California Rules of Court, rule 3.1335(b) provides that a party’s request to specially set a case for trial “may be granted only upon an affirmative showing by the moving party of good cause based on a declaration served and filed with the motion…”

Here, Plaintiffs’ attorney submits an affidavit that states that Plaintiff Beth Itnyre is 92 years old and is currently hospitalized in intensive care. (Decl. Jensen, ¶ 3.) Her husband, Terry Itnyre, has been in intensive care and will likely transfer to hospice care. (Decl. Jensen, ¶ 4.)

Based on the above, the Court finds that Plaintiffs have a substantial interest in the action, and Plaintiffs’ health is such that a preference is needed to prevent prejudicing their interest in the litigation.

The Court grants the motion. Trial is set for December 2, 2024.