MARY THERESA ELMORE, ET AL VS. ERIC MARTIN ERNSTER, ET AL

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).

JUNE 29, 2026, LAW AND MOTION CALENDAR PAGE 3 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ Further, “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.” Code Civ. Proc. § 36.5. Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535 (holding that it was error to deny preference where a party has legitimate concerns about significantly deteriorating health).

Moreover, “The express legislative mandate for trial preference is a substantive public policy concern which” is so strong that it “supersedes such considerations” as inconvenience to the trial Court, which also “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, 1085-86 (citation omitted).

The governing statute further provides that: 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, subd. (e).

Plaintiff is over 70 years old. Code Civ. Proc., § 36 (a). Specifically, Plaintiff is currently 82 years old. Elmore Decl. ¶ 2.

Plaintiff is the late Mr. Elmore’s surviving spouse, who witnessed Defendants’ admitted error (Oldfather Decl., ¶ 7) and her late husband’s resulting death. Elmore Decl. ¶ 3. As such, she has a substantial interest in the instant action as a whole. Code Civ. Proc., § 36(a).

Plaintiff suffers from a degenerative disease and other health conditions that risk prejudicing her interests in litigating the instant action. Id. Plaintiff’s daughter, Tracy Elmore, has been Plaintiff’s primary caregiver since Mr. Elmore’s death, and has witnessed her mother’s emotional distress and deterioration since then. Elmore Decl. ¶¶ 3, 6. Plaintiff was diagnosed with Alzheimer’s disease in 2025 (id. ¶ 4), and her caregiving daughter declares her concerns “that additional delay will make it more difficult for her to articulately explain and present her damages claim to show the jury the effect that that loss of her husband and my father has had on her.”

Id. ¶ 7. Plaintiffs’ counsel also declares his “concern[] that Plaintiff Mary Theresa Elmore’s Alzheimer’s will deteriorate her cognitive abilities to the point that she will have difficulty testifying regarding the incident and her damages.” Oldfather Decl. ¶ 8; Code Civ. Proc. § 36.5.

The evidence indicates that Plaintiff’s medical conditions increase the likelihood that she will pass away before trial, and further, that her ability to present her testimony at trial and otherwise participate in litigation, and to enjoy any compensation in her lifetime, will be prejudiced without a trial preference. Defendants attempt to characterize the declared risks as improper speculation. However, it is clear to the Court from the language of the statute and Plaintiffs’ evidence that Plaintiff’s health “is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.”

Moreover, the Court of Appeal acknowledges the uncertainty and indeterminacy captured in the term, “risk” Fox, 21 Cal.App.5th at 535-36), and 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, 212 Cal.App.3d at 1085 (citation omitted).

Defendants also argue at length that granting the Motion would unfairly prejudice their ability to prepare for trial. However, the Court of Appeal expressly forbids the Court from considering such argument. Swaithes, 212 Cal.App.3d at 1085-86 (the Court “has no power to balance the differing interests of opposing litigants in applying the provision.”). In advancing this argument, Defendants cite the Court of

JUNE 29, 2026, LAW AND MOTION CALENDAR PAGE 4 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ Appeal’s recognition that “there may be ‘strong countervailing considerations’” arising from their right to prepare for trial (Opp., 8:11)—but the language is cited out of context:

Thus, relevant precedent upholds the absolute command of section 36(a) in light of its plain meaning, despite recognition that in certain instances there are strong countervailing considerations—deriving from principles of efficient trial court management; from fairness and due process to other litigants; and from divergent public policy or statutory contexts in which the section 36(a) mandate may be difficult, impractical, or impossible to realize. In short, we approach this case against a background of relevant precedent which holds section 36(a) is a comprehensive and final legislative judgment on the issue, which must prevail whenever the section 36(a) right is juxtaposed to another countervailing argument, based on whatever legitimate or seemingly compelling public interest. Miller v. Sup. Ct. (1990) 221 Cal.App.3d 1200, 1206.

While, due process concerns may exist with trial preferences in the abstract, this case is already more than 15 months old (and, while not necessary for the decision, there is a strong implication that defendants were aware that litigation was likely even before this case was filed), Defendants became aware of the risk that a preference might be granted almost six months ago when this motion was filed and had that last six months available to it (in addition to the prior nine months) to conduct discovery and prepare the theoretical summary judgment motion it references in its opposition. Defendants also do not dispute that substantial discovery has already occurred. Put another way, Defendants’ due process argument is largely generalized and unpersuasive.

In addition, the Court believes the interests of justice warrant trial preference here, to mitigate the risk that Plaintiff’s death or diminishing capacity might deprive/harm her (of the) opportunity to testify to the jury as to the effects of Defendants’ admitted error. (Code Civ. Proc., § 36, subd. (e).)

Any party who contests a tentative ruling must email Dept.11@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, plaintiff’s counsel shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to California Rules of Court, rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the California Rules of Court. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be e-filed only, do not email or mail a hard copy to the Court.