Petition of Plaintiff for Trial Preference
Case Number
Case Type Civil Law & Motion Hearing Date / Time Mon, 08/10/2026 - 10:00 Nature of Proceedings
CMC; Hearing re Petition for Preference Tentative Ruling Robert Boslego v. Samer Othman, MD Case No. 26CV00807 Hearing Date: August 10, 2026 HEARING: Petition of Plaintiff for Trial Preference ATTORNEYS: For Plaintiff Robert Boslego: Self Represented For Defendant Samer Othman, MD: Mark B. Connely, Catherine H. Devlin, Hall Hieatt Connely & Bowen LLP TENTATIVE RULING: The petition for trial preference by plaintiff Robert Boslego is denied.
Background: On February 2, 2026, plaintiff Robert Boslego filed his complaint against Samer Othman, MD (Dr. Othman). On May 7, 2026, this case was ordered related to Robert Boslego v. Covenant Care California, LLC, et al., Santa Barbara Superior Court, Case No. 26CV00743.
As alleged in the Complaint: In November 2024, plaintiff suffered a traumatic brain injury resulting in a craniotomy medical procedure at Cottage Hospital (Cottage) in Santa Barbara. (Comp., P. 2.) On December 6, 2024, plaintiff was transferred to Buena Vista Care Center (BV), a skilled nursing facility in Santa Barbara, and became a resident there. (Compl., P. 4.) BV is affiliated with Covenant Care California. (Ibid.) Dr. Othman was plaintiff's primary attending physician at BV. (Compl., P. 5.)
While at BV, BV and the attending physicians there failed to provide or negligently provided medical care pertaining to BV's wound care. (Compl., P.P. 5-9, 19-25.) BV and the physicians there failed to follow medical directives by plaintiff's physicians at Cottage including a plastic surgery consultation. (Ibid.) BV discharged plaintiff prematurely. (Compl., P. 8.) After plaintiff was discharged from BV, he was admitted to Cottage again and underwent further medical procedures including craniectomy and the removal of a substantial portion of plaintiff's skull due to infection. (Compl., P. 11.)
Plaintiff's skull is terribly disfigured. (Compl., P. 13.) Plaintiff was then discharged to Cottage Rehabilitation Center for additional medical care. (Compl., P. 14.) There he received a hard plastic helmet to protect his brain due to the removal of part of his infected skull. (Ibid.) Plaintiff alleges that the infection to his skull and additional procedures resulted from negligence or lack of care at BV by Dr. Othman. (Compl., P.P. 22-23.) Plaintiff seeks to recover damages for physical injury, pain and suffering, and medical expenses. (Ibid.)
On March 19, 2026, Dr. Othman filed an answer to the complaint generally denying the allegations therein and setting forth 18 affirmative defenses. On May 27, 2026, plaintiff filed a petition for trial preference due to his medical conditions. Dr. Othman opposes this petition on the grounds that plaintiff's moving papers were not supported by evidence in the form of a declaration or any other admissible format. Even if the information presented by plaintiff was admissible, as argued by Dr. Othman, plaintiff does not meet his burden.
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Analysis: "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., Sec. 36, subd. (a).)
"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. Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party." (Code Civ. Proc., Sec. 36, subd. (f).)
Plaintiff, as the moving party has the burden of proof. "Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." (Evid. Code, Sec. 500.) However, "[a]n 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. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36." (Code Civ. Proc., Sec. 36.5.)
"Where a party meets the requisite standard for calendar preference under [Section 36] subdivision (a), preference must be granted. No weighing of interests is involved." (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535.)
Having reviewed the evidence and arguments presented by the parties, the information submitted by plaintiff falls short in demonstrating that plaintiff's "health ... is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (See Code Civ. Proc., Sec. 36, subd. (a).) Plaintiff states that he suffered from a number of injuries and medical conditions as of March 2019, December 2020, November 2024, February 2025, June 2025, July 2025, October 2025, and April 2026. However, there is no evidence as to the anticipated prejudicial impact on plaintiff's case if trial preference is not granted. Thus, plaintiff does not carry his burden to show that trial preference is necessary to prevent prejudice.
For example, plaintiff does not state that plaintiff is unlikely to survive due to these medical conditions. Plaintiff does not indicate that plaintiff's medical conditions are worsening such that prejudice will occur absent trial preference. Plaintiff does not indicate how having trial during the preference period would prevent prejudice that might occur if trial is not held during the preference period. There is no evidence that plaintiff's medical conditions will prevent plaintiff from presenting his case if preference is not granted, or how it would be more difficult for plaintiff to present his case if preference is not granted. Plaintiff's statement in his memorandum that he believes his health is "precarious" is insufficient.
The court finds that plaintiff failed to carry his burden of proof. The court is unable to make a finding based on the evidence that plaintiff's "health ... is such that a preference is necessary to prevent prejudicing [plaintiff's] interest in the litigation." (See Code Civ. Proc., Sec. 36, subd. (a).) For all these reasons, the court will deny plaintiff's petition for preference in trial setting.
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