Judge: Serena R. Murillo, Case: 20STCV20180, Date: 2022-08-29 Tentative Ruling

Case Number: 20STCV20180    Hearing Date: August 29, 2022    Dept: 29

Bertha Arellano Arzaga v. Nancy Donato

TENTATIVE

Plaintiff Bertha Arellano Arzaga’s Motion for Trial Preference under CCP section 36(a) is DENIED.

Legal Standard

Pursuant to Code of Civil Procedure section 36(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.” Code Civ. Proc. § 36(a). 

To make the findings required by CCP section 36(a), evidence must be provided with the motion for preference establishing Plaintiff’s age and the relevant conditions of her health warranting a preference.

An affidavit submitted in support of section 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.”  Code Civ. Proc. § 36.5.  

“Notwithstanding 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.”  Code Civ. Proc. § 36(e).  

If a motion for preference based on a party’s age is granted, the matter must be set for trial not more than 120 days from the date the motion is granted.  (Code Civ. Proc., § 36(f).)  

Discussion

Plaintiff moves for trial preference, arguing that Plaintiff has a substantial interest in the case, and that Defendant is 84 years old, and suffers from injuries that affect her health.

First, CCP section 36(a) states that a party who is over 70 years of age may petition for a preference. Here, Plaintiff is petitioning the court on behalf of the party who is 70 years old (defendant). The plain language of the statute states that the party who is over 70 years old may petition; not another party on behalf of the party who is 70 years old. Thus, the Court cannot grant a trial preference unless Defendant herself petitions the court to do so.

Nevertheless, even if the court could grant relief in this situation, Plaintiff has not met her burden under CCP section 36(a) to show that Defendant’s health is such that a preference is necessary to prevent prejudicing Plaintiff’s interest. Plaintiff’s evidence of Defendant’s medical condition, a hip injury, does not show Defendant’s condition is deteriorating. Plaintiff provides the declaration of Dr. Terry Ishihara, which only indicates that Defendant sustained a hip injury in August of 2021 and is unable at this time to sit through a deposition. (Ramos Decl., Exh. B.)

Plaintiff’s counsel’s declaration and Defendant’s doctor’s note is devoid of facts and details regarding the progression of Defendant’s hip injury, as well as the nature and severity of her current symptoms. Thus, the evidence is not enough, without more detail, to show that the health of the party is such that a preference is necessary.

The present facts are readily distinguishable from those in Fox v. Superior Court (2018) 21 Cal.App.5th 529, where trial preference should have been granted to an 81-year-old with (1) stage IV mesothelioma which had metastasized to the femur, clavicle, and spine, (2) asbestosis, (3) asbestos-related pleural disease, (4) severe coronary artery disease, (5) anemia, (6) whole body aches and pain, (7) severe abdominal and bowel complications, (8) nausea and vomiting, (9) dehydration, (10) drowsiness, (11) extreme weakness and fatigue, (12) chemotherapy-induced impairment to focus, concentration, and communication, (13) an extremely weak immune system, and (14) worsening side effects of the chemotherapy. (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 532.) 

The Court thus finds that Plaintiff has not satisfied the requirements to support a claim for trial preference.  Specifically, Plaintiff has failed to show that Defendant’s health is such that a trial preference is necessary to avoid prejudice.  Counsel’s declaration and the medical records fail to provide the Court with any evidence as to Defendant’s prognosis and condition moving forward.  The evidence presented does not suggest that Defendant will be unable to appear or testify at trial or meaningfully participate in the litigation.  

Accordingly, Plaintiff has failed to make a satisfactory showing under CCP section 36(a) and the motion is denied without prejudice.

Conclusion

Accordingly, the motion is DENIED.

Moving party is ordered to give notice.