PLAINTIFF’S MOTION FOR TRIAL PREFERENCE
The Court does not find that Defendant waived her right to arbitration under section 6201, subdivision (a) or Rules of State Bar, rule 3.502. More pointedly, the Court does not find that the timing of the State Bar’s service of Defendant’s timely request for arbitration (confirmation of which request was served on Plaintiffs prior to the filing of their complaint and Defendant’s answer) creates a waiver of Defendant’s right to arbitration. Rather, making a request with the State Bar for arbitration is sufficient to preserve the client’s rights under section 6201, subdivision (b) and rule 3.502. Moreover, the Court finds the Order, dated June 12, 2026, by the Presiding Arbitrator well-reasoned.
As such, the motion to vacate the stay is DENIED.
Shirley Jo Kilgore v. Piner’s Nursing Home 26CV001142
PLAINTIFF’S MOTION FOR TRIAL PREFERENCE
APPEARANCE REQUIRED: The Court finds good cause for GRANTING the motion. The parties are directed to appear to set the matter for trial.
The moving party fails to include, in the notice of this motion, the current version of the Tentative Ruling notice required by Local Rule 2.9, effective 1/1/26. The current version allows a party or counsel to request a hearing by calling the Court or emailing the Court, at JudicialReception2@napa.courts.ca.gov and providing specified information set out in Local Rule 2.9. The moving party is therefore directed to immediately provide, by telephone call AND email, the current Tentative Ruling notice explicitly required by Local Rule 2.9 to opposing party/ies forthwith.
The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.
Plaintiff Shirley Jo Kilgore moves, pursuant to Code of Civil Procedure section, 36(a) and (e), for an order granting trial preference and setting trial no later than 120 days from the date of hearing on this motion.
“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
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The Court finds that Ms. Kilgore is over 70 years of age. While Defendant correctly objects that Plaintiff’s counsel’s declaration is insufficient to support this finding, Defendant
itself submits a Declaration from Plaintiff’s son stating, on personal knowledge, that his mother was born on August 2, 1947. (See Declaration of Daniel McQueeney, attached to Opposition, at ¶ 1 (McQueeney Decl.).)
The Court finds that Ms. Kilgore has also submitted sufficient evidence to show that preference is necessary to prevent prejudicing Plaintiff’s interest in the litigation. (See Declaration of Conor D. Trombetta at ¶¶ 2-4 (Trombetta Decl.), McQueeney Decl. at 4.)
Through the Opposition, Defendant argues that “the supporting declaration . . . does not contain any evidence . . . concerning any risk posed of Plaintiff’s death or incapacity if trial is delayed.” (Id. at 2:8-10.) Defendant fails, however, to cite to authority requiring evidence of a “risk of death or incapacity.” Rather, the statute clearly requires a showing that “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); see also Fox v. Super. Ct. (2018) 21 Cal.App.5th 529, 534 (Fox) [“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 [her] interest in the litigation.’])
The Court finds evidence sufficient to support such finding in Trombetta Decl. at ¶¶ 2-4. Finally, the Court finds no merit in Defendant’s assertion that such a finding is undermined by matters in the McQueeney Decl. (See Opposition at 2:13-21.) The argument is based on an overly narrow conception of potential prejudice from delay in proceeding to trial. (See Fox, supra, at p. 534.)
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