Favero v. California Friends Homes

“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. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36.” (Code Civ. Proc., § 36.5.) “The attorney’s declaration can consist entirely of hearsay and conclusions [citation.]” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group June 2025 Update) § 12:247.1.) “Admissible evidence is still required as to the party’s age (e.g., declarations by party or admissible records showing the party is over 70). The attorney’s declaration is not sufficient for this purpose.” (Id. § 12:247.3.)

“The standard under subdivision (a), . . ., includes no requirement of a doctor’s declaration.” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534.) “To the contrary, 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.’ [Citations.]” (Ibid.) “The issue under subdivision (a) 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. Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that the party’s ‘health . . . is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.’ (Italics added.)” (Ibid.)

“Under section 36, subdivision (a), a superior court lacks discretion and ‘shall’ grant preference to a party over 70 years of age upon making a showing, ‘(1) [t]he party has a substantial interest in the action as a whole [, and] [¶]

(2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.’ [Citation.]” (Pabla v. Superior Court of Merced County (2023) 90 Cal.App.5th 599, 602-603.) “The trial court has no power to balance the differing interests of opposing litigants in applying the provision.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085–1086, modified (Aug. 17, 1989), modified (Aug. 23, 1989); Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535 [“Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted. No weighing of interests is involved.”].) “The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations.” (Ibid.)

Here, there is no dispute that Plaintiff has a substantial interest in this action. (See Declaration of Lukas I. Pick (“Pick Decl.”), ¶ 4.)

The moving papers provide insufficient evidence as to Plaintiff’s age. Plaintiff’s counsel provides that Plaintiff was born on July 31, 1952, and that Plaintiff is currently 73 years old. (Pick Decl., ¶ 2.) Counsel’s declaration is insufficient to establish that Plaintiff is over 70 years of age. However, the Supplemental Declaration of Casey M. Moore attaches a copy of Plaintiff’s identification card reflecting Plaintiff’s date of birth as Exhibit “A”. (Supp. Decl. of Casey M. Moore, ¶ 3, Ex. A.) Footnote 1 of the moving memorandum of points and authorities indicates that the identification card is attached as Exhibit “A,” but it was omitted. The Court finds the supplemental declaration sufficient to establish Plaintiff is over 70 years of age.

At issue, however, is whether Plaintiff has shown that his health is such that preference is necessary to prevent prejudicing Plaintiff’s interest in this action.

The declaration of Plaintiff’s counsel provides that Plaintiff has severe medical conditions including “lumbar post laminectomy syndrome, spinal stenosis, chronic pain disorder, and pressure ulcer on his

sacrum.” (Pick Decl., ¶ 2.) Plaintiff’s counsel also states, “[d]ue to the pressure ulcer on his sacrum, his mobility has decreased, and his health has continued to deteriorate.” (Ibid.) Plaintiff’s counsel additionally provides upon “information and belief” after meeting Plaintiff and examining Plaintiff’s medical records from St. Jude Hospital, that Plaintiff will not survive to be alive for trial if this case is not granted preference. (Id., ¶ 3.) Plaintiff’s counsel states, “Plaintiff’s overall health condition has deteriorated since his severe pressure wound on his sacrum and decreased mobility while at the facility, in addition to chronic pain disorder and spinal stenosis, and his health will continue to deteriorate. The medical statistics evidence that plaintiff’s life expectancy will be drastically reduced as a result of the decreased mobility.” (Ibid.)

The prejudice asserted by Plaintiff’s counsel is that Plaintiff’s health is such that Plaintiff may die before trial if not given preference. However, Plaintiff’s counsel statements are insufficient to support that Plaintiff’s medical conditions including “lumbar post laminectomy syndrome, spinal stenosis, chronic pain disorder, and pressure ulcer on his sacrum” are such that Plaintiff’s heath is rapidly deteriorating towards death, i.e., the asserted prejudice. In addition, Plaintiff’s counsel’s declaration does not contain sufficient information about Plaintiff’s medical conditions and diagnosis and the manner in which these conditions and/or diagnosis prejudices Plaintiff’s interest in this litigation if preference is not granted. Based on the foregoing, Plaintiff fails to show that preference is necessary to prevent prejudicing Plaintiff’s interest in the litigation.

Therefore, the motion is denied without prejudice.

Defendant, Park Regency Care, LLC dba Park Regency Care Center to give notice.

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