LEONOR GOMEZ ET AL VS SAN MATEO COUNTY TRANSIT DISTRICT (SAMTRANS)

Accordingly, once the Court makes the findings required by subdivision (a), preference must be granted; the Court does not balance the competing interests of the parties in determining whether preference should be afforded. (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535; see also Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085–1086.)

The Legislature has also expressly authorized the required medical showing to be made through counsel. Code of Civil Procedure section 36.5 provides:

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.)

Thus, section 36, subdivision (a), does not require a physician’s declaration. An attorney declaration based on information and belief concerning the party’s medical diagnosis and prognosis may suffice, even when the declaration consists of hearsay and conclusions. (Fox, supra, 21 Cal.App.5th at p. 534.)

Nor must the moving party establish that she is likely to die before trial. The statute protects against the risk that declining health or incapacity may prevent an elderly litigant from meaningfully participating in the litigation. (See id.at pp. 534–535; Swaithes, supra, 212 Cal.App.3d at p. 1085.)

ANALYSIS

Plaintiff Has a Substantial Interest in the Action

Plaintiff is 74 years old. (Sigala Decl., ¶ 4.) She is a named plaintiff seeking recovery for injuries and damages she allegedly sustained in the underlying incident. (Sigala Decl., ¶ 5.)

Plaintiff therefore has a substantial interest in the action as a whole within the meaning of Code of Civil Procedure section 36, subdivision (a)(1).

Plaintiff’s Health Warrants Trial Preference

The Court also finds that Plaintiff’s health is such that preference is necessary to prevent prejudicing her interest in the litigation. (Code Civ. Proc., § 36, subd. (a)(2).)

The medical materials submitted with the Motion document serious spinal and cervical injuries, continuing pain and physical impairment, and other ongoing medical consequences. (Sigala Decl., ¶ 7 & Exh. 1.) Plaintiff reportedly required almost two months of hospitalization and convalescent care and continues to suffer significant physical limitations. (Ibid.)

More importantly for purposes of section 36, Plaintiff’s counsel declares under penalty of perjury:

Based on my discussions with my client, my review of her medical records, and my consultation with relevant experts, I am informed and believe that my client suffers from multiple injuries, that her mental

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and physical condition is deteriorating, and that she will be unable to meaningfully participate in this lawsuit unless a trial is set within the next 120 days.

(Sigala Decl., ¶ 8.)

Section 36.5 expressly permits the Court to consider an attorney declaration made on information and belief concerning a party’s diagnosis and prognosis. The absence of a separate physician declaration therefore does not render Plaintiff’s showing insufficient. (Fox, supra, 21 Cal.App.5th at p. 534.)

Defendants contend that Plaintiff remains capable of performing various activities of daily living and participating to some extent in aquatic physical therapy. Defendants also rely on an Independent Medical Evaluation (“IME”) stating that there is “[n]o diminution of life expectancy secondary to the disability from the 08/04/2023 event.” (Opp., 9:16–18; Sigala Decl., Exh. 1.)

The Court is not persuaded that this evidence defeats Plaintiff’s showing. Section 36, subdivision (a), does not require proof that Plaintiff is presently incapacitated, unable to perform ordinary activities, or likely to die before trial. The pertinent question is whether Plaintiff’s health is such that delaying trial creates a material risk of prejudicing her ability meaningfully to participate in the litigation. (Fox, supra, 21 Cal.App.5th at pp. 534– 535.)

The evidence before the Court establishes that risk. Counsel’s declaration, considered together with the medical materials submitted with the Motion, establishes that Plaintiff has significant continuing medical problems and that her physical and mental condition is deteriorating. The Court therefore finds that Plaintiff’s health is such that trial preference is necessary to prevent prejudicing her interest in this litigation. (Code Civ. Proc., § 36, subd. (a)(2).)

Both requirements of Code of Civil Procedure section 36, subdivision (a), are satisfied.

Defendants’ Claims of Prejudice Do Not Warrant Denial of Preference

Defendants contend that granting preference will impair their ability to complete discovery and otherwise prepare the matter for trial.

Those concerns do not warrant denial of preference once the Court has made the findings required by section 36, subdivision (a). Upon satisfaction of the statutory requirements, preference is mandatory, and the Court does not balance the qualifying party’s right to preference against the opposing parties’ interests in additional preparation time. (Fox, supra, 21 Cal.App.5th at p. 535; Swaithes, supra, 212 Cal.App.3d at pp. 1085–1086.)

Indeed, Swaithes explains that the failure to complete discovery or other pretrial matters does not defeat the statutory right of a qualifying litigant to trial preference. (Swaithes, supra, at pp. 1085–1086.)

Defendants also request that, if preference is granted, the Court impose a series of conditions concerning discovery, privacy rights, dispositive motions, and the trial date. Defendants identify no authority authorizing the Court to condition Plaintiff’s statutory entitlement to preference upon acceptance of those proposed requirements.

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The Court therefore declines to impose Defendants’ requested conditions. This ruling does not, however, preclude appropriate discovery or case-management orders that are otherwise authorized by law and consistent with the requirements of section 36.

DISPOSITION

Plaintiff Leonor Gomez’s Motion for Trial Setting Preference and for Trial Setting is GRANTED.

The Court finds that:

1. Plaintiff is over 70 years of age and has a substantial interest in the action as a whole; and 2. Plaintiff’s health is such that preference is necessary to prevent prejudicing her interest in the litigation.

(Code Civ. Proc., § 36, subd. (a)(1)–(2).)

Pursuant to Code of Civil Procedure section 36, subdivision (f), trial shall be set within 120 days of the granting of this Motion. Accordingly, trial shall be set no later than December 11, 2026.

Defendants’ request that the Court impose the additional conditions identified in their opposition is DENIED.

If the tentative ruling is uncontested, it shall become the order of the Court. Plaintiff, as the prevailing party, shall prepare and submit a proposed written order pursuant to California Rules of Court, rule 3.1312, and shall give notice of the Court’s ruling pursuant to Code of Civil Procedure section 1019.5.