MOTION FOR PREFERENTIAL TRIAL SETTING
deal with causes of action, an affirmative defense is the equivalent to a cause of action for purposes of this motion. Motion to Strike DENIED in its entirety.
5. CASE # CASE NAME HEARING NAME MOTION FOR PREFERENTIAL TRIAL CVPS2507287 MANAVIE VS EXEL INC. SETTING BY ARLETA L. MANAVIE, MICHAEL A. MANAVIE Tentative Ruling: C.C.P., § 36(a) provides that a party who is over 70 years of age may petition the court for 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.” (C.C.P., § 36(a)(1)-(2).)
Code of Civil Procedure section 36(c)(1) requires that a party filing a motion for preference support it with “a declaration of the moving party that all essential parties have been served with process or have appeared.”
Moreover, C.C.P., § 36(d) provides that the court may, in its discretion, grant a motion for preference “accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.”
Where a party meets the requisite standard for calendar preference based on the party’s health and status as more than 70 years of age, preference must be granted; the court cannot balance conflicting interests. (Fox v. Sup. Ct. (2018) 21 Cal.App.5th 529.)
Notably, the requisite showing under § 36(a) may be made through an attorney affidavit “based upon information and belief as to the medical diagnosis and prognosis.” (C.C.P., § 36.5; see also Fox, supra, 21 Cal.App.5th at 534 [no doctor’s declaration is required under the standard of subdivision (a)].)
Trial must be set within 120 days even if opposing parties have not completed discovery or pretrial preparations. (C.C.P., § 36(f); Swaithes v. Sup. Ct. (1989) 212 Cal.App.3d 1082, 1086.)
Defendants contend the motion must be denied because an essential party, Hillebrand Last Mile USA, Inc., the entity allegedly involved in the incident, has not been named, served, or appeared. Defendants assert that on April 24, 2026, defense counsel identified this deficiency and requested amendment of the complaint.
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In reply, Plaintiff demonstrates that Defendant Hillebrand Gori USA, LLC filed an answer to the complaint on April 8, 2026, through counsel David A. Shimkin of Cozen O’Connor, and that Defendant Hillebrand Gori USA, LLC has not asserted in its filed answer that the incorrect entity was named.
Plaintiff also represents that Hillebrand Gori USA, LLC’s counsel, Mr. Shimkin, has not moved to quash, demurred, or otherwise asserted that the incorrect entity was named, and has not provided documentation to support such a claim.
Section 36(c)(1) requires a declaration that all essential parties have been served or appeared. The record before the Court demonstrates that all named defendants have filed answers. Whether a differently named entity should also be joined is a separate question that does not defeat the statutory prerequisite where all currently named parties have appeared.
CCP § 36(a) Mandatory Preference: Under section 36(a), the preference is mandatory if Plaintiff is over 70 years old, has a substantial interest in the action and health necessitating preference to prevent prejudice.
There is no dispute that Plaintiff is 85 years old. There is also no dispute that she is an injured party seeking damages which constitutes a substantial interest in the action as a whole.
The parties dispute whether Plaintiff’s health necessitates preference. The motion asserts that Plaintiff sustained serious injuries including left gluteus medius tendon tear requiring surgical repair, bilateral hip pain, bilateral lower extremity weakness, spinal injury/pain, abnormal gait, balance dysfunction, and ongoing anxiety, with over $84,428.72 in medical bills.
The motion further asserts that Plaintiff suffers from “progressive cognitive impairment, a potential carcinoma, and cumulative fragility.” The motion is supported by the declaration of attorney Vivian W. Lin, who declares, based on information and belief, as to Plaintiff’s medical diagnosis and prognosis.
As Fox v. Superior Court (2018) 21 Cal.App.5th 529 instructs, the standard under subdivision (a) does not require a showing of imminent death or incapacity. The relevant inquiry is whether the party’s “health is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.”
The standard under subdivision (a) “is more open-ended” than that under subdivision (d), and that the issue “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.” (Fox, supra, 21 Cal.App. 5th at 534.)
The court further held that an attorney declaration based on information and belief is sufficient, as a “motion under subdivision (a) may be supported by nothing more than an attorney’s declaration 'based upon information and belief as to the medical diagnosis and prognosis of any party.’” (Id.)
Where a party meets the standard, “preference must be granted. No weighing of interests is involved.” (Id. at 535.)
Under section 36(a), the moving party must provide some showing linking the party’s health to a need for preference to prevent prejudice to the party’s litigation interest. The Court must be able to make a finding, not merely accept a conclusory assertion.
Here, there are concerns about the sufficiency of Plaintiff’s showing: First, the motion contains a section heading erroneously referring to “PLAINTIFF CAROL E. MORTON'S AILING HEALTH,” the name of an unrelated plaintiff in a separate action filed by the same counsel.
Defendants have demonstrated that the motion is substantially identical in language and structure to a motion filed in Morton v. Turner, Case No. CVPS 2500324, including near-verbatim language that the plaintiff’s “odds of surviving long enough to appear at trial are continuing to lower with each passing day.” This raises questions about whether the motion reflects Plaintiff’s individualized circumstances or is a standardized template adapted without particularized analysis.
Second, the medical evidence is vague and non-specific. References to “potential carcinoma” and “cumulative fragility” are offered without an actual diagnosis, treatment plan, or physician opinion. The record contains only an ambiguous reference to a “mass of right lung” with no accompanying explanation, diagnosis, or evidence of malignancy. The cognitive references are limited to “mild cognitive impairment” and “memory loss” without indication that Plaintiff cannot understand, testify, or otherwise participate in trial proceedings.
Third, the available medical records suggest relative stability rather than decline, Plaintiff underwent pre-operative evaluation for hip surgery, reported no recent falls, and was actively participating in physical therapy.
Fourth, the incident occurred in January 2024, over two years before this motion was filed, and Plaintiff offers no evidence of material worsening, new diagnosis, or significant deterioration since the incident.
Notwithstanding these concerns, there is a strong legislative policy underlying section 36(a). The statute was enacted “to ensure that senior litigants do not lose the right to have their cases litigated because of delays in setting trial dates.” (Miller v. Superior Court (1990) 221 Cal.App.3d 1200.)
As the Fox court explained, for those in declining health, "the end may come quickly with little warning; years may pass with gradual, relentless decline before the battle is lost; or, happily, there may be sustained remission after episodic periods of improvement and relapse.” (Fox, supra, 21 Cal.App.5th. at 535- 536.)
The court found that “indeterminacy is not only inherent in the situation, but is part of the challenge of dealing with it.” (Fox, supra, 21 Cal.App.5th. at 536.)
Still, in Fox, the record was uncontroverted that the plaintiff suffered from stage IV lung cancer, severe coronary artery disease, was undergoing chemotherapy, and her mental state had deteriorated to a point of confusion and forgetfulness. (Id. at 535.)
The showing here is less, an 85-year-old plaintiff with hip injuries and vague references to “potential” carcinoma and “mild” cognitive impairment, and medical records from January of 2025 with no indication that her current status has worsened.
CCP § 36(d) Discretionary Preference: Under section 36(d), the Court has discretion to grant preference when accompanied by “clear and convincing medical documentation” that concludes a party “suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months.”
As the Fox court noted, this standard is “more specific and more rigorous” than subdivision (a). (Fox, supra, 21 Cal.App.5th. at 534.)
In reply, Plaintiff argues for the first time that preference should be granted under C.C.P., § 36(d). New arguments cannot be provided in reply papers. (Maleti v. Wickers (2022) 82 Cal.App.5th 181, 227-228.)
Nonetheless, Plaintiff has not submitted clear and convincing medical documentation that she suffers from an illness or condition raising substantial medical doubt of survival beyond six months. The references to “potential carcinoma” and “mild cognitive impairment” do not constitute medical documentation concluding that Plaintiff’s survival beyond six months is in substantial doubt.
Motion for Preferential and Early Trial Setting DENIED without prejudice. Case Management Conference to be held to determine future court dates considering the ruling on the motion for preference.