Judge: Olivia Rosales, Case: 24NWCV02785, Date: 2024-11-22 Tentative Ruling

Case Number: 24NWCV02785    Hearing Date: November 22, 2024    Dept: F

HENDERSON v. HENDERSON

CASE NO.:  24NWCV02785

HEARING: 11/22/24

Plaintiff’s unopposed motion for trial preference is DENIED without prejudice.

Moving Party to Give notice.  

No Opposition filed as of November 22, 2024.

This premises liability action was filed by Plaintiff RODNEY HENDERSON (“Plaintiff”) on August 27, 2024.

Plaintiff now moves for trial preference under CCP §36(a).

“(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.” (CCP §36(a).)  “At any time during the pendency of the action, a party who reaches 70 years of age may file and serve a motion for preference.” (CCP §36(c)(2).)

“An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 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.” (CCP §36.5.)

Plaintiff was born on May 13, 1946, and is currently 78 years old. (Henderson Decl., ¶2.) Plaintiff declares that is suffers from heart problems, diabetes, has a pace maker and defibrillator, low oxygen levels, sleep apnea, and is scheduled for a heart ablation surgery. (Henderson Decl., ¶¶3-6 and 8.)

The Motion is DENIED without prejudice. Plaintiff fails to substantiate why a preference is necessary for health reasons. The Court finds that Plaintiff’s declaration fails to set forth any assertion that his health is such that not granting trial preference would prejudice their interest in this litigation. While Plaintiff recites his current diagnoses and ailments, his Declaration does not state facts showing the need for any expedience. Plaintiff does not indicate that his conditions are at risk of worsening before their case comes to trial.