Riggs v. Llamas, et al

The Swaithes Court stated:

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Failure to complete discovery or other pretrial 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. The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations. (Id. at 1085-86.)

To establish trial preference the moving party needs to support the request and may do so by submitting an affidavit “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.” (CCP§36.5.)

A doctor’s declaration is not required nor is a showing that the elderly litigant might die or become so disabled that he cannot appear at trial. (Fox, supra, 21 Cal.App.5th at 534.)

“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.” (Looney v. Superior Court (1993) 16 Cal.App.4th 521, 532; see also Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1199 [section 36 “is a legislative recognition of the maxim that ‘justice delayed is justice denied’”].)

In the case at hand, there is no dispute that Plaintiff is over 70 years old and that she has a substantial interest in the action as a whole. The issue at hand is whether Plaintiff has met her burden of proof to show her health “is such that a preference is necessary to prevent prejudicing his interest in the litigation.” (CCP§36(a).

Plaintiff’s motion is supported by Plaintiff’s counsel’s declarations and attached exhibits, which consist of limited medical records. Plaintiff’s medical records list her current diagnoses as “[t]raumatic brain injury, persistent concussive syndrome, with a significant disability related to the collision,” “[n]eurocognitive impairment, posttraumatic in onset”, and “[p]osttraumatic vertigo.” (N. Quincey Decl. Ex. A at 5.)

However, Plaintiff does not state how her injuries actually would interfere with her participation in trial, only that she has them.

Plaintiff’s counsel makes a conclusionary statement “I have seen and information I have received from her treating physicians, and also as a result of the length of time that will elapse before plaintiff could even be given a trial date, in order to prevent Ms. Riggs’s

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interest in this litigation from being prejudiced she should be granted a preferential trial date.” (N. Quincey Decl. pg. 4, ¶8).

This simply quotes the legal standard and does not let the Court know how her injuries would prevent her from participating in the case, if not given preferential trial preference.

RULING

1. Plaintiff’s Motion for trial preference is DENIED WITHOUT PREJUDICE.

2. Movant to give Notice.

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