Ronald Wilmot et al vs State of California Department of Transportation (Caltrans) et al

Case Number

22CV00456

Case Type

Hearing Date / Time

Mon, 02/02/2026 - 10:00

Nature of Proceedings

Hearing Return on Remittitur; Motion for Preferential Trial Setting Pursuant to CCP 36

Tentative Ruling

Ronald Wilmot, et al. v. State of California Dept of Transportation (Caltrans), et al.                                                                 

Case No. 22CV00456

           

Hearing Date: February 2, 2026                                            

HEARING:              Plaintiff’s Motion for Preferential Trial Setting

ATTORNEYS:        For Plaintiffs Ronald Wilmot and Sandy Wilmot: Bradford D.      Brown, Lawrence D. Marks

                                    For Defendant and Cross-Complainant State of California             Department of Transportation: G. Michael Harrington, Casper Gorner

                                    For Defendant and Cross-Defendant Susan G. McCurnin: Marc   S. Shapiro

                                   

TENTATIVE RULING:

The motion to preferentially set the trial date is denied.

Background:

This action arises from an automobile versus bicyclist accident that occurred on January 3, 2021, on Highway 101, crossing the Arroyo Quemada Bridge in Santa Barbara County, California. Plaintiff Ronald Wilmot was riding his bicycle southbound on Highway 101 when he was struck by a vehicle being driven by defendant Susan McCurnin.

Plaintiffs Ronald Wilmot (Plaintiff) and Sandy Wilmot filed their original complaint on February 3, 2022. Thereafter, on May 19, 2022, the Wilmots filed their first amended complaint (FAC) against State of California Department of Transportation (Caltrans), County of Santa Barbara, Susan Gain McCurnin, and Does 1 to 20.

Following a second demurrer being sustained with leave to amend, the Wilmots filed the operative second amended complaint (SAC), on November 7, 2022, against Caltrans, County of Santa Barbara, Susan Gain McCurnin, and Does 1 to 20. The SAC contains causes of action for (1) negligence, (2) negligent entrustment, (3) dangerous condition of public property government code section 835 et seq., (4) negligent act or omission of public entity or public employee (Gov. Code, § 840.2), and (5) loss of consortium. The County of Santa Barbara was dismissed on February 7, 2023.

Plaintiff filed a previous motion for preference on March 30, 2023, based on Code of Civil Procedure section 36, subdivisions (a) and (e). The motion was denied.

Sandy Wilmot resolved her claim for loss of consortium and notice of entry of judgment was filed on May 22, 2023.

The matter went to trial on March 4, 2024, and on March 20, 2024, a jury found for plaintiff.

Following the jury trial, Caltrans appealed. The appellate court reversed the judgment in full.

Plaintiff again moves for trial preference. Caltrans opposes the motion.

Analysis:

“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, subd. (a).)

“The clear intent of the Legislature is to safeguard litigants who qualify under subdivision (a) of section 36 against the acknowledged risk that death or incapacity might deprive them of the opportunity to have their case effectively tried and to obtain the appropriate recovery.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085, Rice v. Superior Court (1982) 136 Cal.App.3d 81, 86-89.) “There can be little argument that section 36 was enacted for the purpose of assuring that an aged or terminally ill plaintiff would be able to participate in the trial of his or her case and be able to realize redress upon the claim asserted. Such a preference is not only necessary to assure a party’s peace of mind that he or she will live to see a particular dispute brought to resolution, but it can also have substantive consequences. The party’s presence and ability to testify in person and/or assist counsel may be critical to success. In addition, the nature of the ultimate recovery can be adversely affected by a plaintiff’s death prior to judgment.” (Looney v. Superior Court (1993) 16 Cal.App.4th 521, 532.)

There is no dispute that plaintiff is 89 years old and that, as the plaintiff, he has a substantial interest in the action as a whole. The first prong of establishing entitlement to preference is met. Therefore, the court will address the second prong of whether plaintiff’s health is such that a preference is necessary, and required, to prevent prejudicing plaintiff’s interest in the litigation.

The present motion is similar to plaintiff’s prior motion in that it relies, to some extent, on medical records from directly after the accident, January 2021, that do not tend to show any condition that would mandate preference. However, for the present motion, plaintiff does attach medical records from October 23, 2025, and July 10, 2025 (Exhibit 1 to the Marks declaration), showing plaintiff’s recent conditions.

The October 23, 2025 records show that plaintiff was diagnosed with Symptomatic Atrial Fibrillation and underwent ablation, which is a minimally invasive procedure. The records further indicate that plaintiff tolerated the procedure well, that there were no complications, and that plaintiff left the procedure room hemodynamically stable. There are no records of a follow-up visit provided by plaintiff that would tend to show his current condition or prognosis.

The July 10, 2025 records include a diagnosis of: (1) Severe asthma with acute exacerbation, unspecified whether persistent; (2) Shortness of breath; (3) Pleural effusion; and (4) Cough, unspecified type. Plaintiff did not provide any records or information regarding treatment or prognosis for the diagnosis.

Critical to the analysis of the motion is the fact that there is no evidence, or even opinion, of plaintiff’s prognosis. Plaintiff has failed to make the required showing that his health “is such that a preference is necessary to prevent prejudicing [his] interest in the litigation,” as required by Code of Civil Procedure section 36, subdivision (a). Advanced age, on its own, is not sufficient. There is no evidence that any of plaintiff’s medical conditions would affect his ability to participate in trial should the matter proceed on the regular court calendar.

Plaintiff requests that, in the alternative, the court grant preference pursuant to Code of Civil Procedure section 36, subdivision (e), which provides: “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.” The court will not grant trial setting preference under this code section as plaintiff has not met his burden for the granting of such an order.

The motion for preference will be denied.

Because the motion is being denied for the above reasons, the court need not address Caltrans’ argument regarding due process or lack of prejudice to plaintiff.