David Christian vs Westmont Living Inc et al

Case Number

25CV00586

Case Type

Hearing Date / Time

Wed, 05/14/2025 - 10:00

Nature of Proceedings

Motion for Trial Preference

Tentative Ruling

Anthony Kastenek for Plaintiff

Joshua Bordin-Wosk for Defendants

Issue

Motion for Trial Preference

RULING

The motion is DENIED. Notwithstanding the denial of this motion for trial preference, the court will consider plaintiff’s health in setting a trial date at the 5/28/25 CMC.

Analysis

This is a motion for trial preference in a wrongful death/ survival action arising from a vehicle v. pedestrian accident occurring on March 8, 2024. The plaintiff is 80 years old and “has been diagnosed with neuropathy and gastritis.” (Kastenek decl., ¶¶ 5, 6.) Plaintiff David Christian moves for trial preference pursuant to Code of Civil Procedure section 36, subdivision (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.”

“An 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 Civ. Proc., § 36.5.)

Defendants Westmont Living, Inc., Mariposa Operating Company, LP, and Ramon Mendoza, Jr., oppose the motion. Defendants argue that plaintiff’s medical condition as reflected in the supporting declaration does not demonstrate a need for trial preference and that the defendants would be prejudiced by the accelerated trial schedule if the motion is granted.

No trial date has yet been set and a CMC is now scheduled for May 28, 2025.

“The issue under subdivision (a) is not whether an elderly litigant might die before trial or become so disabled that she might as well be absent when trial is called. Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that that party’s ‘health ... is such that a preference is necessary to prevent prejudicing [the party’s] interest in the litigation.’” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534, original italics.)

Under this standard, plaintiff has not shown that the preference is necessary to prevent prejudice. Plaintiff’s counsel’s declaration fails to comply with section 36.5 by failing to state plaintiff’s prognosis. In the absence of a prognosis, there is no evidence before the court the extent to which the health conditions suffered by plaintiff could or would prejudice the plaintiff’s interests in the litigation by a normal litigation timeline.

The Court’s Conclusion

The motion should therefore be denied. Notwithstanding the denial of this motion for trial preference, the court may consider plaintiff’s health in setting a trial date at the 5/28/25 CMC.