Judge: Serena R. Murillo, Case: 23STCV17236, Date: 2023-10-05 Tentative Ruling

Case Number: 23STCV17236    Hearing Date: October 18, 2023    Dept: 31

TENTATIVE

Plaintiff’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, that Plaintiff is 85 years old, and his health is in decline. Plaintiff states he has been diagnosed with Non-Hodgkin Lymphoma. Non-Hodgkin Lymphoma is a type of blood cancer that affects his white blood cells called lymphocytes. Lymphocytes are an important part of his immune system. (Barsegian Decl., ¶¶ 2-6.) In addition to Non-Hodgkins Lymphoma, Plaintiff has also been recently diagnosed with a heart condition wherein his heart experiences both premature ventricular contractions and premature atrial contractions. Essentially, when he sleeps, his heart stops. His heart stops for up to six seconds at night. (Barsegian Decl., ¶¶ 2-6.) Plaintiff also suffers from shortness of breath and fatigue, as well as acid reflux. (Barsegian Decl., ¶ 7.)

Plaintiff has not met his burden under CCP section 36(a) to show that his health is such that a preference is necessary to prevent prejudicing Plaintiff’s interest. Plaintiff’s evidence in the form of his declaration that his physical condition is continuing to decline, is devoid of facts and details regarding the progression of Plaintiff’s diagnoses. Thus, the evidence is not enough, without more detail, to show that the health of the party is such that a preference is necessary. Plaintiff’s counsel cites to Code of Civil Procedure section 36.5, but this section specifically states that the affidavit has to contain a medical prognosis of the party.  (Code Civ. Proc. § 36.5.)

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 Plaintiff’s health is such that a trial preference is necessary to avoid prejudice.  Plaintiff’s declaration fails to provide the Court with any evidence as to Plaintiff’s prognosis and condition moving forward.  The evidence currently presented does not suggest that Plaintiff’s interests in the litigation will be prejudiced.  

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.