Motion for Trial Preference
# Case Name Tentative 49 Buford vs. Rees
25-01478579 Motion for Preference
Plaintiffs Marianne Buford and Gerald Minich’s Motion for Trial Preference is GRANTED.
Motions for Trial Preference
Unless the court orders otherwise, the motion must be supported by a declaration of the moving party stating that all essential parties have been served with process or have appeared. (Code Civ. Proc., § 36(c)(1).)
The heightened clear-and-convincing-evidence standard applicable to discretionary preference under section 36(d) does not apply to a motion under section 36(a). (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 533–534.) Nor does section 36(a) require proof of death, incapacity, or likely unavailability for trial. (Id. at p. 534.) “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 plaintiff’s] interest in the litigation.’ (Italics added.)” (Ibid.)
In support of the motion, the moving party’s attorney may submit an affidavit based upon information and belief as to the medical diagnosis and prognosis of the moving party. (Code Civ. Proc., § 36.5.)
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.” (Looney v. Superior Court (1993) 16 Cal.App.4th 521, 532.)
If the court finds that a party meets the requirements of section 36(a), the court cannot balance conflicting interests of opposing litigants. (Fox v. Superior Court, supra, 2
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Unless the court orders otherwise, the motion must be “supported by a declaration of the moving party that all essential parties have been served with process or have appeared.” (Code Civ. Proc., § 36(c)(1).)
If the motion is granted, trial must be set within 120 days after the motion is granted. (Code Civ. Proc., § 36(f).)
Application
Minich, as a named plaintiff, has a substantial interest in the action. He is 83 years old. (Minich Decl., ¶¶ 2–3.) Minich submits his own declaration and medical records showing severe cardiac and pulmonary conditions, recent major procedures and hospitalization, progressive shortness of breath, exhaustion after minimal exertion, and significant mobility limitations. (Minich Decl., ¶¶ 4–11, Ex. A.) He states that his health continues to decline and expresses concern that
further delay will impair his ability to attend trial, testify before a jury, assist counsel, and fully present his claim. (Minich Decl., ¶ 12.)
JCK Computing opposes the motion and argues that Minich’s conditions are largely longstanding and that neither his declaration nor the medical records establish that an ordinary trial schedule would impair his ability to participate in the litigation. JCK notes that Minich has participated in discovery and does not claim any cognitive impairment affecting his ability to communicate. JCK also contends that an expedited trial would prejudice its ability to complete outstanding depositions, medical discovery, an independent medical examination of Buford, and expert preparation. (Cook Decl., ¶¶ 2–3.)
However, Minich’s declaration and medical records show recent surgeries, hospitalization, progressive shortness of breath, exhaustion after minimal exertion, inability to drive, and other functional limitations that may impair his ability to attend and participate meaningfully in a later trial. (Minich Decl., ¶¶ 5– 12, Ex. A.) His prior participation in discovery does not establish that he will remain able to participate after further delay.
The record therefore establishes that Minich’s health makes preference necessary to prevent prejudice to his interest in the litigation. Because Minich satisfies section 36(a), preference is mandatory, and the court may not balance JCK’s discovery and trial-preparation interests against Minich’s statutory right to preference. (Fox v. Superior Court, supra, 21 Cal.App.5th at p. 535.) In any event, the record indicates that JCK has conducted substantial discovery and had opportunities to pursue the remaining discovery. (Rodenhuis Decl., ¶¶ 4–10; Rodenhuis Supp. Decl. ¶¶ 7-10.)
Plaintiffs did not submit the declaration concerning service or appearance contemplated by section 36(c)(1). Nevertheless, the court’s records establish that all essential parties have been served and have appeared. The court therefore dispenses with the separate declaration pursuant to section 36(c)(1).
Therefore, the motion is GRANTED. Trial is scheduled on 11/19/2026 at 8:30am in Department C16.
Plaintiffs are ordered to give notice.
51 Chocolate Bash the Outlets at Orange LLC vs. Orange City Mills Limited Partnership
26-01544712 1. Demurrer to Complaint 2. Motion to Strike Complaint
Defendant Orange City Mills Limited Partnership’s Demurrer to Complaint is SUSTAINED as to the third cause of action for unjust enrichment and the claim referenced as “Implied Warranty & Good Faith and Fair Dealing”. Should Plaintiff wish to amend, the amended pleading must be filed within 20 days of notice of this ruling.
As to the second cause of action for fraud the Demurrer is OVERRULED for the following reasons: