Judge: Barbara M. Scheper, Case: 22STCV13558, Date: 2024-05-02 Tentative Ruling

Case Number: 22STCV13558    Hearing Date: May 2, 2024    Dept: 30

Dept. 30

Calendar No.

Present, et. al. v. Playa Properties 2, LLC, et. al., Case No. 23STCV13558 (consolidated with 23SMCV03124)

Tentative Ruling re:  Plaintiff’s Motion for Trial Preference

            Plaintiffs move for an order granting trial preference under CCP section 36(a) on grounds that Plaintiff Regina Present has a substantial interest in this litigation as a whole, is over the age of 70, and her health is such that a preferential trial setting is necessary to prevent prejudicing her interest in this litigation.  The motion is granted.

            Under Code of Civil Procedure section 36, subdivision (a), “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[, and] (2)¿The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” 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. (Code Civ. Proc. § 36, subd. (f).)

            Here, Plaintiff Regina Present has submitted evidence that she was born on December 13, 1932. (Collins Decl., ¶ 4; Reply, Bentley Decl., Ex.1 Responses and Objections of Regina Present to Defendant Robert Eitel’s Form Interrogatories, Set One No. 2.2. at page 4).

            Defendant Nudson argues in opposition that Plaintiffs have failed to provide admissible evidence to show Plaintiff Regina is over 70 years old because Plaintiffs merely state in a conclusion in their declaration that Regina’s birth date is December 13, 1932, and she is 91 years old. Defendant Nudson cites to CCP § 36.5 which states that an attorney’s signed declaration can only be used to show the medical diagnoses and prognosis of a party and is only admissible for a motion for preference under CCP § 36(a).

However, in Plaintiffs’ reply, Plaintiffs attached Exh. 1 (Responses and Objections of Reginia Present to Defendant Robert Eitel’s Form Interrogatories, Set One.) In the interrogatory, Plaintiff Reginia Present states that she was born in Los Angeles, CA on December 13, 1932. (Id. line 6-9, p 2.)

Therefore, she is 91 years old as of today’s hearing and eligible for relief under CCP § 36.

All defendants argue that Regina does not have a substantial interest in the action as a whole. The Court disagrees.

Plaintiffs are alleging that their real property, Fowling Street Property, was damaged during a landslide. (First Amended complaint, ¶ 7.) Allegedly the damage was caused because the Defendants removed dirt from behind a retaining wall that provided lateral support to Plaintiffs’ property. (Id., ¶ 8.) Plaintiff Regina Present is the sole beneficiary of a trust which grants her 84 percent ownership of the Fowling Street Property. (Plaintiffs’ Reply on Motion for Trial Preference, line 17-18, p. 2) As majority owner of the Fowling Street Property, the Court finds that Regina Present has a substantial interest in the outcome of this case because the case outcome will determine who is financially responsible for the damage caused to her property.

Under Code of Civil Procedure § 36.5 “An 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.”

Here, Craig M. Collins, Plaintiffs’ counsel, submitted a signed declaration in support of their motion. He attested that Plaintiff Regina Present has severe medical conditions. (Declaration of Craig M. Collins, ¶ 6.) Mr. Collins stated that “Ms. Present is suffering from rapid cognitive decline, possibly the result of several reoccurring strokes, with symptoms including memory lapses, slurred speech, mood abnormalities, uncontrollable episodes of sleep at inappropriate times throughout the day, including while speaking, headaches and dizziness. She also has also undergone surgery to install a pacemaker. Her husband Harold Present recently died on October 15, 2023, at the age of 91. Ms. Present’s physical decline has become increasingly rapid since that time.” (Id. ¶ 7.) The Court finds that this evidence is sufficient to show that Plaintiff Regina Present’s health is such that preference is necessary to prevent prejudicing her interests.

            Defendants Derek Eitel, Jay Eitel, and Jenie Eitel argue Plaintiffs have failed to present competent medical evidence showing Regina’s health is such that preference is necessary.  Specifically, Defendants argue no declaration has been submitted by a treating physician.  Defendants rely on Fox v. Superior Court of San Francisco (2018) 21 Cal.App.5th 529 to support their argument.

            Defendants’ argument is unpersuasive because Fox specifically states that a doctor’s declaration is not required: “The standard under subdivision (a), unlike under subdivision [CCP 36] (d), which is more specific and more rigorous, includes no requirement of a doctor's declaration. To the contrary, a motion under subdivision (a) may be supported by nothing more than an attorney's declaration.” (Fox, supra, 21 Cal.App.5th at 534.) This standard is also articulated in CCP 36.5 and is quoted above. Here, Plaintiffs’ counsel submitted a signed declaration which is sufficient under CCP 36.5 to show Plaintiff Regina Present’s health is such that preference is necessary to prevent prejudicing her interests.

            Defendants argue that their due process rights will be violated if the motion is granted, because it will deprive Defendants of adequate time to conduct discovery.

            Plaintiffs state that it would not matter if there was insufficient time for discovery; the trial must be held in 120 days if trial preference is granted under CCP § 36. Plaintiffs cite Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085-1086, which states that “Mere inconvenience to the court or to other litigants is irrelevant. Failure to complete discovery or other pre-trial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36. The trial court has no power to balance the differing interests of opposing litigants in applying the provision. The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations.”

            Given the standard set forth in Swaithes, the Court has no power to balance the opposing interest of litigants. Therefore, the Defendants’ assertion that their due process rights will be violated cannot impact the Court’s decision to grant or deny a motion for trial preference.

            Accordingly, the motion is granted.