Judge: Theodore R. Howard, Case: 22-1279121, Date: 2023-08-03 Tentative Ruling

The unopposed motion by plaintiff Beverly Carbajal for an order granting preference in setting this case for trial is DENIED.

CCP §36 states, in pertinent part that “(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.”

Although Ms. Carbajal has satisfied the requirements of showing that she is over 70 years of age and has a substantial interest in the action, she has failed to satisfy the requirements of CCP §36(a)(2).  Ms. Carbajal states that she has “a medical history significant for: hypertension, diabetes, asthma, hypothyroidism, and colitis” which she believes will decrease her life expectancy.  (Carbajal decl at ¶¶5-6)

This evidence falls well short of satisfying the second mandatory element of subd. (a). Plaintiff has not demonstrated that her health is such that specially setting the trial is necessary to prevent prejudicing her interest in the litigation.  Plaintiff does not submit evidence that her medical condition is in any way life threatening, that she may be too infirm to attend the trial or that she is at risk of dying before the trial.  (See, e.g. Fox v. Superior Court (2018) 21 Cal.App.5th 529 - plaintiff was suffering from stage IV lung cancer which had metastasized throughout her body.)

Plaintiff has not made a sufficient showing of how Ms. Carbajal’s health is such that a preference is necessary to prevent prejudicing her interest in the litigation.

In addition, the proof of service for the motion does not comply with the requirements of CCP §1013b(b) which requires that proof of electronic service must include “(1)  The electronic service address and the residence or business address of the person making the electronic service” and “(3) The name and electronic service address of the person served.”  Here, the proof of service only shows the physical addresses of the person who served the document and the person upon whom the document was served.

Accordingly, the motion is DENIED, without prejudice.

Counsel for plaintiff is ordered to give notice of this ruling.