Motion for Trial Preference
24CV013798: RICCI vs MOHANNA, et al. 08/22/2025 Hearing on Motion for Trial Preference in Department 47
Tentative Ruling
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The motion of Plaintiff Alvin E. Ricci, Jr. (Plaintiff) for preference in trial setting under Code of Civil Procedure § 36(a) is DENIED, without prejudice.
To obtain preference under Code of Civ. Proc. § 36(a) a party must be over the age of 70, have a substantial interest in the litigation and suffer from a health condition such that preference is necessary to prevent prejudicing the party's interest in the litigation. A motion for preference may be filed after all essential parties have been served with process or have appeared by any party who has attained the age of 70 at the time the motion is filed. (Code Civ. Proc. § 36(c).)
Plaintiff is 93 years old and is currently confined to Post-Acute care. (Ricci Decl., ¶ 2.) Plaintiffs Counsel provided a declaration identifying various health conditions suffered by Plaintiff and conclusively declares these conditions create a substantial risk Plaintiff will be unable to participate at trial if preference is denied.
In opposition, Defendant argues Plaintiff has failed to present sufficient evidence to demonstrate that preference is necessary to prevent prejudice. Defendant notes that Plaintiffs hip fracture occurred two years ago and argues Plaintiff has failed to provide information as to Plaintiffs current condition and how those conditions impact Plaintiffs ability to participate in trial.
In reply, Plaintiff correctly cites to authority indicating a motion for preference under section 36(a) may be supported by nothing more than an attorneys declaration based upon information and belief as to the medical diagnosis and prognosis of any party. (Fox v. Superior Court
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24CV013798: RICCI vs MOHANNA, et al. 08/22/2025 Hearing on Motion for Trial Preference in Department 47
(2018) 21 Cal.App.5th 529, 534 [quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 12:247.1, p. 12(I)-44].) However, the declaration must provide information as to both the partys diagnosis and prognosis. Here, Counsel merely declares Plaintiff has been diagnosed with various conditions. Counsels declaration does not provide details as to Plaintiffs prognosis for those conditions and does not otherwise explain why those conditions create a risk of impacting Plaintiffs ability to participate in trial. Plaintiff has therefore failed to satisfy the requirements for preference under Code of Civil Procedure § 36(a).
Plaintiff also argues preference should be granted in the interests of justice under Code of Civil Procedure § 36(e). Code of Civil Procedure § 36.5 does not permit the Court to consider Counsels declaration based on information and belief in connection with a motion under subdivision (e) of section 36. The speculative possibility that a prior partner may initiate foreclosure proceedings on the real property in dispute is not sufficient to establish that granting preference would serve the interests of justice. The motion is therefore denied.
This case has been assigned to Department 47 for hearing. In the event that either party requests a hearing the matter will be heard at 9:30 a.m. in Department 47. Any party requesting an oral argument must contact the clerk at (916) 874-5487 and opposing counsel or parties in pro per by 12:00 p.m. on the court day before the hearing. If a proper request for hearing is not made, this shall become the order of the Court.
Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government Code section 68086 and California Rules of Court, rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.Pdf A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Courts Approved Official Reporter Pro Tempore list, Once the form is signed it must be filed with the clerk.
If a litigant has been granted a fee waiver and requests a court reporter, the party must submit
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO
24CV013798: RICCI vs MOHANNA, et al. 08/22/2025 Hearing on Motion for Trial Preference in Department 47
a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporters Office and an official reporter will be provided.