Case Number: BC699289 Hearing Date: June 18, 2018 Dept: 2

Plaintiffs’ Motion for an Order Granting a Preferential Trial Date, filed on 5/18/18, is DENIED.

Plaintiff makes this motion for preference based on Cal Code Civil Procedure §36(a), that Plaintiff is over 70 years of age (he is 72), has a substantial interest in the litigation as a whole, and because his health is “such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” Cal Code Civil Procedure §36(a).

The motion can be supported by an affidavit of counsel based on information and belief “as to the medical diagnosis and prognosis” of any party. Cal Code Civil Procedure § 36.5. The declaration of Plaintiff’s counsel is, therefore, admissible to support the motion.

The declaration is insufficient, since it contains no information “as to the medical diagnosis and prognosis” of Plaintiff. Declaration of Patrick Gunning. At most, Plaintiff’s counsel vaguely concludes that Plaintiff’s health is “declining,” which does not bear on a medical diagnosis or prognosis. Nor does it establish that Plaintiff’s health is “such that that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” Cal Code Civil Procedure § 36(a).

Moving party is ordered to give notice.