Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate, Super.Ct.No. INC065379, Randall Donald White, Judge.
Khorrami, Pollard & Abir, Mark Ravis, Karen Travis and Sonia Tandon for Petitioners.
No appearance for Respondent.
Agajanian, McFall, Weiss, Tetreault & Crist, Scott B. McFall, Susan Heider; Greines, Martin, Stein & Richland, and Timothy T. Coates for Real Party in Interest Desert Regional Medical Center.
No appearance by Real Parties in Interest Javed Siddiqi and Dimple Agarwal.
OPINION
KING, J.
In this matter, we have reviewed the petition and the opposition filed by real party in interest Desert Regional Medical Center. We have determined that resolution of the matter involves the application of settled principles of law and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
First, we do not think the motion was barred by the provisions of Code of Civil Procedure section 1008, subdivision (b) (the “new facts” subdivision). We agree that the motion did not address whether or not a previous application had been made or to what judge. However, real party in interest themselves ensured that the trial court was fully familiar with the procedural history of the request for preference and we do not believe that counsel for petitioners intended to mislead the court.
We also believe there was an adequate showing of “new facts” in that the doctor’s written opinion, dated August 2008, was issued well after the motion made in April 2008. Whether petitioner Tomas Garcia’s condition deteriorated before April or after April is pure speculation.
We recognize that a while a favorable decision on a motion for trial preference under Code of Civil Procedure section 36, subdivision (a), is mandatory if the statutory conditions are met (Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689), it is incumbent upon the moving party to establish that he or she qualifies. Here, it is undisputed that petitioner Tomas Garcia is over 70 years of age and has a substantial interest in the litigation. It only remains to determine whether petitioners adequately showed that his interests would be prejudiced if he did not obtain preferential trial setting.
We would agree that the doctor’s medical opinion here was perhaps not expertly drafted. However, read generously, it appears clear that petitioner Tomas Garcia’s physical and mental condition is deteriorating. A reasonable inference is that if he does not obtain trial preference, he may not survive to enjoy the fruits (if any) of the litigation. Accordingly, the trial court erred in denying the motion.
DISPOSITION
Let a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate its order denying petitioners’ motion, and to enter a new order granting the motion and setting a trial date in accordance with the statute.
Petitioners to recover their costs.
Petitioners are directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
This order shall be final forthwith.
We concur: HOLLENHORST, Acting P. J., MILLER, J.