Judge: Richard Y. Lee, Case: 30-2022-01251835, Date: 2022-09-08 Tentative Ruling

Plaintiff PATRICIA GILSLEIDER will move the Court for an order granting Plaintiff trial preference status such that the Court would set the matter for trial not more than 120 days from the date this motion is granted.

The authority cited by Plaintiff for this motion is Code Civ. Proc. §§ 36(a), 36(f), and 36.5.

Code Civ. Proc. §36(a) provides 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.

“(2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.”

Code Civ. Proc. §36(f) provides that, “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.”

Finally, Code Civ. Proc. §36.5 provides that, “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. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36."

In this instance, Plaintiff is currently 86 years of age. (Voas Decl., ¶ 3.) Thus, she satisfies the requirement in Section 36(a) that a party be over 70 years of age.

Plaintiff’s cause of action for negligence stems from injuries she incurred while under the care of Defendant’s employee. (Voas Decl., ¶ 2, Exhibit 1.) Thus, Plaintiff has a substantial interest in the action as a whole. (Code Civ. Proc. § 36(a)(1).)

As to the final requirement, however, there is inconsistent evidence as to whether Plaintiff’s health is such that granting trial preference status is necessary to prevent prejudicing her interests in the litigation. (Code Civ. Proc. §36 (a)(2).)

Initially, Plaintiff argues, “If Mrs. Gilsleider passes away prior to the resolution of her case, she will be unable to personally seek justice for her injuries and receive an outcome for the matter.” Motion page 3:17-19.

First, Plaintiff argues she has an active diagnosis of cervical cancer for which she is no longer receiving chemotherapy or radiation. (Voas Decl., ¶4, Exhibit 2.)

Defendant argues that in actuality, Plaintiff’s cervical cancer is cured based on the treatment she already underwent. (See Exhibits A-C to Declaration of Jenifer Hassell, Esq.) Plaintiff, in fact, testified on July 11, 2022, that her cancer was 90% cured; and as such, she opted to forego the last procedure which would have resulted in a 100% cure of the cancer. (See Decl. of Hassell, Ex. A, page 11:19-23.) Based on her deposition testimony, without more, Plaintiff has not established this aspect of her health warrants trial preference.

Second, Plaintiff argues she also suffers from Parkinson’s disease, atherosclerosis, asthma, anemia, hypothyroidism, cardiac arrythmia, chronic venous insufficiency, degenerative joint disease, lymphedema, osteoarthritis, osteoporosis, recurring urinary tract infections, and has a history of breast cancer necessitating a mastectomy. (Voas Decl., ¶ 4, Exhibit 2.)

However, Defendant argues there is no evidence that Plaintiff’s Parkinson’s is advanced or terminal, and her medical records establish she’s been living with it for 13 years. (See Exhibits A-C to Declaration of Jenifer Hassell, Esq.) Defendant also argues that Plaintiff’s medical records reflect that she has been living with arthritis since 2012. (Id.) Further, that Plaintiff testified that she has a history of breast cancer over 20 years ago that was treated, and she no longer has it. (Id.) And finally, that Plaintiff testified she does not have cardiac conditions. (Id.) Therefore, it does not appear the various comorbidities listed by Plaintiff would prejudice her interests in litigation if the requested relief were not granted.

Finally, Plaintiff argues that trial preference is necessary because as a result of the hip fracture, Plaintiff currently continues to require assistance from caregivers for all activities of daily life. (Voas Decl.,¶5.) Defendant argues, however, that Plaintiff had her hip fracture surgically repaired almost a year ago and has recovered. (Decl. of Hassell, Ex. B.)

All in all, while Plaintiff is eighty-six years old and suffering from some health issues, none of the evidence presented to the Court individually and collectively establishes that her health is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.

That is, there is no indication that Plaintiff’s health issues will prevent her from participating in litigation for the foreseeable future.  Based upon the foregoing, Plaintiff’s motion pursuant to CCP § 36(a) is DENIED without prejudice.  Of course, if there is a change of circumstance, the Court will re-consider Plaintiff’s position and arguments.

Defendant to give notice.