Marilyn Gilbert vs Aidan Conlan et al

Case Number

Case Type Civil Law & Motion Hearing Date / Time Fri, 08/21/2026 - 10:00 Nature of Proceedings Motion: Leave to Amend; Motion: Preference; CMC Tentative Ruling For all reasons set forth herein: (1) The motion of plaintiff Marilyn Gilbert for leave to file a first amended complaint is granted. Plaintiff shall file and serve a first amended complaint on or before September 4, 2026. (2) The motion of plaintiff Marilyn Gilbert for preference in trial setting is denied.

Background: On July 7, 2025, plaintiff Marilyn Gilbert initiated this action by filing a complaint against defendants Aidan Conlan and Lawrence Conlan, setting forth two causes of action for (1) motor vehicle and (2) general negligence. As alleged in the complaint, on December 25, 2024, defendants caused a vehicle to collide into the rear of the vehicle driven by plaintiff in Santa Barbara at 3700 Modoc Road. (Compl., p. 5.)

On September 29, 2025, defendants filed an answer generally denying the allegations in the complaint and setting forth 36 affirmative defenses.

On April 16, 2026, plaintiff filed a motion for leave to file a first amended complaint. This motion is unopposed. Defendants filed a notice of non-opposition.

On July 30, 2026, plaintiff filed a motion for preference in trial setting. Defendants filed an opposition to this motion, arguing that plaintiff has not carried her burden of proof as to the necessity of preference.

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.)

The declaration of counsel for plaintiff establishes that plaintiff is 91 years old, that "[b]ecause of her injuries, the worst being the low back and left ankle, [plaintiff] now requires a cane to walk and frequently depends upon her wheelchair as prolonged, standing or walking is painful," and that counsel is "concerned that [plaintiff's] age and medical condition puts her at an increasing risk of losing her ability to testify as fully and completely as she can right now. At the age of 91, time is not on her side." (Declaration of Jeffrey S. Young [Young Decl.], P.P. 2-6.)

Plaintiff attaches a letter from plaintiff's physician, which states, in part, "[plaintiff] is 91 years old and has a host of medical problems, including being a cancer survivor, having only one kidney, lung disease, many orthopedic issues, and many other problems. Despite all of that, right now she is very able to participate in her legal affairs. [P.] While I don't expect her to have a sudden demise, people of her age and with numerous medical conditions as she has, often develop new problems which can make them unable to fully and meaningfully participate in their affairs. If it is possible to consider her circumstances in terms of scheduling her court case, that would be appropriate from a medical standpoint." (Young Decl., Ex. A.)

Plaintiff also attaches a follow-up letter from her physician, which states in part, "I pointed out and still feel that I can not say she is likely to pass away in the next 6 months, though of course that is possible. [P.] The update I'll share is that she had a small thalamic stroke in the first or second week of June. She was transiently quite confused, but a month later she is close to being back to baseline. I mention this only to confirm my earlier opinion that, given her problems, the likelihood of future inability to participate in her legal case continues to increase with time." (Young Decl., Ex. A.)

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 establishes that she suffered from significant injuries and medical conditions. However, there is insufficient evidence as to the anticipated prejudicial impact on plaintiff's case if trial preference is not granted. For example, plaintiff does not indicate 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's physician states, "the likelihood of future inability to participate in her legal case continues to increase with time," but provides no specifics on when plaintiff may experience such issues.

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 insufficient evidence that plaintiff's medical conditions will prevent plaintiff from presenting her case if preference is not granted, or how it would be more difficult for plaintiff to present her case if preference is not granted.

The court finds that plaintiff failed to carry her burden of proof. (Evid. Code, Sec. 500.) 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.

The court will grant the motion for leave to amend. "Generally, leave to amend should be liberally granted. However, unwarranted delay justifies denial of leave to amend." (Miles v. City of Los Angeles (2020) 56 Cal.App.5th 728, 739.) Here, there is no opposition to the motion for leave to amend and defendants filed a notice of non-opposition.

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