Tentative Ruling: Marilyn Osgood et al vs Smart & Final Stores, LLC et al

Case Number

25CV07493

Case Type

Hearing Date / Time

Fri, 04/24/2026 - 10:00

Nature of Proceedings

CMC; Motion for Preference

Tentative Ruling

For the reasons stated herein, the motion of plaintiffs for an order granting preference in trial setting is denied, without prejudice.

Background:

As alleged in the complaint of plaintiffs Marilyn Osgood (M Osgood) and John Osgood (collectively, Plaintiffs):

On September 2, 2025, M Osgood was shopping at a Smart & Final Extra! located in Santa Barbara, California, when, without warning, a large heavy shelving unit fell over and struck M Osgood, knocking her to the ground with multiple heavy cases of beer landing on top of her. (Complaint, ¶¶ 12 & 15-16.) As a result of the incident, M Osgood suffered severe injuries. (Complaint, ¶ 19.)

At the time of the incident, J Osgood was waiting in the car while M Osgood shopped. (Complaint, ¶ 13.) M Osgood served as the primary caregiver for her husband J Osgood, who has cognitive impairments. (Ibid.) As a direct result of the incident, M Osgood has been unable to serve as primary caregiver for J Osgood due to her severe injuries. (Complaint, ¶ 20.)

Plaintiffs filed their complaint against defendants Smart & Final Stores LLC, and Chedraui USA, Inc., on November 25, 2025, asserting three causes of action (1) negligence, premises liability; (2) general negligence; and (3) loss of consortium.

Defendants have not filed a response to the complaint.

On February 13, 2026, Plaintiffs filed a motion for an order granting preference in trial setting pursuant to Code of Civil Procedure section 36, subdivision (a), on the grounds that Plaintiffs are over 70 years of age and have a substantial interest in the litigation, and that Plaintiffs’ health is such that preference is necessary to prevent prejudicing that interest.

The motion is supported by a declaration of Plaintiffs’ counsel, Andrea Posey (attorney Posey), who states that M Osgood is 87 years of age and that J Osgood is 90 years of age. (Posey Dec., ¶¶ 3, 7, exhibit A [M Osgood driver’s license] & exhibit B [J Osgood driver’s license].) M Osgood is the primary plaintiff who suffered severe injuries when the shelving unit fell on her at defendants’ store on September 2, 2025, which include fractures to M Osgood’s pelvis and foot, knee pain, and other soft tissue injuries. (Posey Dec., ¶ 5.) In addition, M Osgood has been diagnosed with an unrelated brain tumor which has resulted in a deterioration of M Osgood’s health. (Ibid.)

Attorney Posey further states that J Osgood suffers from cognitive impairments, and that J Osgood’s physical and cognitive condition is deteriorating as a result. (Posey Dec., ¶ 8.) As a result of the injury to M Osgood, who is J Osgood’s wife and primary caregiver, J Osgood was deprived of the love, assistance, comfort, care, protection, and support M Osgood was more fully able to provide before the subject incident. (Posey Dec., ¶ 7.)

Attorney Posey asserts that the advanced ages and medical concerns of Plaintiffs may result in Plaintiffs being unable to testify competently, participate meaningfully in the case, or benefit from any recovery if the litigation is delayed. (Posey Dec., ¶ 9.) It is also the understanding of attorney Posey that damages for pain and suffering are not recoverable if Plaintiffs die before the conclusion of this case. (Posey Dec., ¶ 10.) For these reasons, attorney Posey contends, it is critical that this matter proceed to trial expeditiously to prevent prejudicing Plaintiffs’ substantial interest in obtaining compensation for their injuries. (Ibid.)

Defendants have filed an opposition to the motion.

Analysis:

“At any time during the pendency of the action, a party who reaches 70 years of age may file and serve a motion for preference.” (Code Civ. Proc., § 36, subd. (c)(2).) “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)(1), (2).)

“In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.” (Code Civ. Proc., § 36, subd. (d).)

“Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party’s attorney, or upon a showing of good cause stated in the record.” (Code Civ. Proc., § 36, subd. (f).)

“Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted. No weighing of interests is involved.” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535 (Fox).) “Mere inconvenience to the court or to other litigants is irrelevant. [Citation.] Failure to complete discovery or other pre-trial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36. The trial court has no power to balance the differing interests of opposing litigants in applying the provision.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.)

As a preliminary matter, in support of their opposition to the motion, defendants have filed objections to material contained in the declaration of attorney Posey. A declaration submitted in support of a motion for preference under Code of Civil Procedure section 36, subdivision (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; see also Fox, supra, 21 Cal.App.5th at p. 534 [physician’s declaration not required for a motion for mandatory trial preference].) Moreover, to determine the motion, the court considers only that evidence which is admissible and relevant to the issues presented.

The declaration of attorney Posey is sufficient to show that Plaintiffs are each over 70 years of age, and suffer from various health or medical conditions as further detailed above. Defendants also do not present any reasoned argument disputing that Plaintiffs each have a substantial interest in these proceedings. Notwithstanding that Plaintiffs are over 70 years of age and have a substantial interest in these proceedings, the motion fails to show that the health of Plaintiffs justifies a calendar preference to prevent any prejudice to Plaintiffs’ interests in this litigation.

For example, the motion does not raise any substantial medical doubt that either M Osgood or J Osgood will not survive beyond six months, suffer from a terminal illness, or why Plaintiffs may not survive any delay. (See Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1199 [general discussion].) It is also unclear if or when M Osgood began suffering from the brain tumor described by attorney Posey in relation to this litigation, or whether or to what extent the brain tumor has impaired M Osgood or caused the health of M Osgood to worsen. To the extent the available evidence and information shows that Plaintiffs’ respective health or medical conditions are permanent, the motion does not show that those conditions are expected to further deteriorate in a manner that will prevent Plaintiffs from participating in these proceedings. (Fox, supra, 21 Cal.App.5th at p. 535 [noting that though party could participate in trial, party had “good reason for concern that will not be the case for much longer....”].)

Furthermore, court records reflect that J Osgood is represented in this action by Jan Martinez, who was appointed guardian ad litem for J Osgood pursuant to court order signed and entered on December 8, 2025. “The guardian ad litem’s purpose is to protect the rights of the incompetent person. [Citation.] He or she has the right to control the litigation on behalf of the incompetent person. [Citation.] ‘Among his powers are the right to compromise or settle the action [citation], to control the procedural steps incident to the conduct of the litigation [citation], and, with the approval of the court, to make stipulations or concessions that are binding on the [incompetent], provided they are not prejudicial to the latter’s interests [citation].’ [Citation.]” (In re Christina B. (1993) 19 Cal.App.4th 1441, 1453–1454.) Considering the appointment of a guardian ad litem of J Osgood, and that the exercise of the guardian ad litem may exercise their powers in a manner that may not prejudice the interests of J Osgood, the motion fails to show why a preference is necessary to prevent prejudice to those interests.

Under the totality of the circumstances present here, and considering that J Osgood’s rights and interests in these proceedings are protected by the appointment of a guardian ad litem, the motion fails to show why a preference is necessary to prevent prejudicing Plaintiffs’ interests in this litigation. For these and all further reasons discussed above, the court will, at this stage of the proceedings, deny the motion for preference.

The court’s denial of the motion is without prejudice to any appropriate motion for a preference that may be filed by Plaintiffs in the future, should the circumstances of Plaintiffs’ health or medical condition change or give rise to an impending loss of ability to participate in the litigation. The court is also inclined to consider the age and health of Plaintiffs in setting a trial date.