14-707612
Plaintiff’s motion for trial preference is DENIED. The report from Kaiser Permanente lacks foundation, and is irrelevant in determining plaintiff’s current medical condition for determination of this motion. Further, the conditions identified in the report are not of a life-threatening nature or quality such that a preference is necessary to prevent prejudicing his interest in the litigation.

Defendants to give notice of ruling.

Plaintiff must establish that he is entitled to preference under CCP Section 36(a). His age of 85 doesn’t automatically qualify him for preference. Under subsection (a) the Ct. shall grant preference to a party over 70 years of age, if (1) the party has a substantial interest in the action as a whole; and (2) the health of the plaintiff is such that a preference is necessary to prevent prejudicing the plaintiff’s interest in the litigation. Here, plaintiff hasn’t established that his health is such that preference is necessary to prevent prejudicing the plaintiff’s interest in the litigation.

Per CCP Section36.5 an atty affidavit is sufficient to seek preference under Section 36(a) based on information and belief as to the medical diagnosis and the prognosis of any party. Here, plaintiff submits his attorney’s declaration stating that plaintiff’s medical records attached indicate he was born on 11/11/28. Defendants object to the records and the declaration as hearsay. There really is no dispute that plaintiff is over 70 at this point. The problem is plaintiff doesn’t provide sufficient evidence that his health is such that a preference is necessary to prevent prejudicing his interest in the litigation.

Even though he provides a partial medical report from Kaiser Permanente (which defendants object to as lacking foundation and containing hearsay) even if the objections were overruled, none of the listed maladies are of such a nature that preferential setting of trial within 120 days is necessary. The medical record is not dated. Thus the time frame of when plaintiff had these maladies is unknown. Also, the severity of the maladies is not provided. The one page medical record does not indicate that plaintiff’s illnesses are life threatening. The medical record doesn’t even indicate any of the listed maladies are a diagnosis by a physician. Although a heart condition is admittedly a serious condition, it appears that the laundry list of problems is primarily a known history of existing issues. There is nothing in the record that indicates that plaintiff is in an acute state of any one of these problems. There is no evidence offered by a physician that any of these problems are significant or substantial enough that it would prejudice his interest in the litigation if he was not given a preferential trial date. There is no doubt that plaintiff is a sickly man, but there is no evidence that any of his illnesses will affect his ability to be engaged at the time of a regularly set trial date in early 2015.