Judge: Serena R. Murillo, Case: 22STCV32931, Date: 2023-01-31 Tentative Ruling

Case Number: 22STCV32931    Hearing Date: January 31, 2023    Dept: 29

TENTATIVE

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

Legal Standard

Code of Civil Procedure section 36(a) states that a preferential trial date is mandatory where the party is over 70 years old; the party has a substantial interest in the action; and the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest.  (Code Civ. Proc. § 36(a).) 

Code of Civil Procedure section 36(c)(1) requires a motion for mandatory trial preference under CCP section 36(a) must be supported by a declaration that all essential parties have been served with process or have appeared. (Code Civ. Proc. § 36(c)(1); Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2019) ¶12:273.) 

Code of Civil Procedure section 36.5 provides that “[a]n 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.  

Code of Civil Procedure section 36(e) states that, “[n]otwithstanding 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).)  

Discussion

Code of Civil Procedure Section 1005(b) provides that “[u]nless otherwise ordered or specifically provided law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” “[I]f the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 16-day period of notice shall be increased by two calendar days.” (Code Civ. Proc. § 1005(b).)

Here, Plaintiff served Defendant Michel Clair with the subject motion by email on January 10, 2023. As a result, Plaintiff failed to give adequate notice under Code of Civil Procedure Section 1005(b). The motion is therefore denied as procedurally defective.

Accordingly, the motion is DENIED without prejudice.