Motion for Preference in Trial Setting
Case Number
Case Type Civil Law & Motion Hearing Date / Time Wed, 07/08/2026 - 10:00 Nature of Proceedings Motion for Preference in Trial Setting Tentative Ruling For Plaintiffs Richard Dawson and Sonia Sandomer: Russ W. Ercolani, Westlake Injury Law For Defendant City of Carpinteria: Joshua M. George, Carrick J. Meyers, Adamski Moroski Madden Cumberland & Green LLP
For all reasons stated herein, the motion of Plaintiff Richard Dawson for preference in trial setting is denied.
Background
On December 8, 2025, Plaintiffs Richard Dawson and Sonia Sandomer filed their complaint against Defendant City of Carpinteria (Carpinteria), setting forth two causes of action for (1) dangerous condition of public property and (2) loss of consortium.
The complaint alleges that on December 21, 2024, Dawson was riding a bicycle eastbound on the righthand side of Carpinteria Avenue when his bike tire struck an uneven surface causing his bicycle to flip onto the street. (Compl., P.P. 9-12.)
As alleged, Carpinteria had actual notice of a negligently maintained access cover near 4297 and 4299 Carpinteria Avenue that caused the accident, which was a dangerous public condition. (Compl., P.P. 14-16.)
Dawson suffered significant personal injuries including a right clavicle fracture, acute displacement in his ribs, brain hemorrhage, and injury to his right shoulder, right elbow, and hip. (Compl., P. 13.)
Dawson seeks to recover damages related to his personal injuries. (Compl., P. 17.)
Sandomer, Dawson's spouse, seeks recovery for loss of consortium. (Compl., P.P. 26-29.)
On April 7, 2026, Dawson filed this motion for preference in trial setting pursuant to Code of Civil Procedure section 36, subdivision (a).
Dawson argues that he is 86 years old, has a financial stake in this litigation, and suffers from a number of acute and chronic medical conditions.
As argued by Dawson, if he does not receive trial preference, he may not live long enough to enjoy the benefits of any victory at trial.
Carpinteria opposes this motion, arguing that Dawson did not carry his evidentiary burden to show that Dawson will suffer prejudice if trial preference is not granted.
Carpinteria argues that the declaration submitted by counsel is insufficient and no other evidence was submitted in support of the motion.
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Analysis
"A party to a civil action who is over 70 years of age may petition the Court for a 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." (Code Civ. Proc., Sec. 36, subd. (a).)
"Upon the granting of such a motion for preference, the Court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party's attorney, or upon a showing of good cause stated in the record. Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party." (Code Civ. Proc., Sec. 36, subd. (f).)
Dawson, as the moving party has the burden of proof.
"Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." (Evid. Code, Sec. 500.)
However, "[a]n 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., Sec. 36.5.)
"Where a party meets the requisite standard for calendar preference under [Section 36] subdivision (a), preference must be granted. No weighing of interests is involved." (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535.)
The declaration by Dawson's counsel establishes that Dawson is 86 years old and suffered "from a right clavicle fracture, acute displacement in his ribs, brain hemorrhage, and injury to his right shoulder, right elbow, and hip." (Ercolani Decl., P. 2.)
In addition, the declaration establishes that Dawson has several medical conditions including atrial fibrillation, peripheral vascular disease, subdural hematoma, non-Hodgkin's lymphoma, sleep apnea, and traumatic right side intracerebral hemorrhage. (Ercolani Decl., P. 5.)
The declaration states that it is counsel's understanding that these medical conditions are unlikely to improve. (Ercolani Decl., P. 6.)
Though Dawson was previously able to regularly ride his bike and hike before the accident, the severity of his injuries resulted in permanent functional limitations. (Ibid.)
Having reviewed the declaration and arguments presented by the parties, the declaration of Dawson's counsel falls short in demonstrating that Dawson's "health ... is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (See Code Civ. Proc., Sec. 36, subd. (a).)
The declaration states that Dawson suffers from a number of injuries and medical conditions and that counsel understands these medical conditions are unlikely to improve. (Ercolani Decl., P.P. 2, 5, 6.)
However, there is no evidence as to the anticipated prejudicial impact on Dawson's case if trial preference is not granted.
For example, counsel's declaration does not state that Dawson is unlikely to survive due to these medical conditions.
Counsel's declaration does not indicate that Dawson's medical conditions are worsening such that prejudice will occur absent trial preference.
Counsel's declaration does not indicate how having trial during the preference period would prevent prejudice that might occur if trial is not held during the preference period.
There is no evidence that Dawson's medical conditions will prevent Dawson from presenting his case if preference is not granted, or how it would be more difficult for Dawson to present his case if preference is not granted.
No other declarations were submitted and no other bases for trial preference were asserted by Dawson.
The Court finds that Dawson failed to carry his burden of proof.
The Court is unable to make a finding that Dawson's "health ... is such that a preference is necessary to prevent prejudicing [Dawson's] interest in the litigation." (See Code Civ. Proc., Sec. 36, subd. (a).)
For all these reasons, the Court will deny Dawson's motion for preference in trial setting.
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