Department 58

Hearing Date: August 29, 2022

Case Name: Amoroso Place, LLC v. John Fabian Bever

Case No.: 22STCV05698

Motion: Motion for Trial Setting Preference

Moving Party: Plaintiff Amoroso Place LLC

Opposing Party: Unopposed

Tentative Ruling: Plaintiff’s Motion for Trial Setting Preference is granted.

This action concerns real property located at 947 Amoroso Place, Venice, CA 90291. Phillip Wiseman and Helen Searing (Searing) transferred their interests in the property to Amoroso Place, LLC (Plaintiff or LLC). Plaintiff then hired John Fabian Bever (Defendant) as manager, to operate its day-to-day business affairs. On May 12, 2019, Phillip Wiseman passed away and Searing is the executor.

Defendant then allegedly entered into a lease agreement with Modern Life, Inc. on behalf of the LLC. Plaintiff alleges that Defendant was the principal of Modern Life and negotiated favorable terms to that company without regard to Plaintiff. Since then, Modern Life has engaged in short-term rentals of the property to third parties. The Complaint asserts claims for breach of fiduciary duty, conversion, trespass to chattels, accounting, unjust enrichment, fraud, breach of oral contract, and request for temporary restraining order, preliminary and permanent injunction.

Plaintiff moves for a court order granting preference for trial because its only living member, Searing, is 93 years old, has a substantial interest in the action, and her health is such that preference is necessary to prevent prejudicing her interest in this action. Defendants filed a Notice of Non-Opposition with proposed trial dates.

Legal Standard

A party to a civil action who is over 70 years of age is entitled to preference upon a showing that the party has a substantial interest in the action as a whole and the health of the party is such that preference is necessary to avoid prejudice. (Code Civ. Proc., § 36, subds. (a)(1)–(2).) “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.” (Id., § 36.5.)

“Where a party meets the requisite standard for calendar preference under [Code of Civil Procedure 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.) “Failure to complete discovery or other pretrial 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.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.)

“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.” (Code Civ. Proc., § 36, subd. (f).)

Discussion

Here, Plaintiff advances the declaration of its counsel, Lloyd S. Mann. Mann avers that Searing is the only living member of the limited liability company and is 93 years old. (Mann Decl., ¶ 3.) In April 2022, Searing reportedly broke her foot and was hospitalized. She later fell again and was generally not feeling well. Mann attests that her health is likely deteriorating. (Id. at ¶ 5.) In addition, Searing resides in New York, and it is difficult for her to travel to Los Angeles. (Ibid.)

The Court finds that Searing has substantial interest in this action, given that she is the only remaining member of the LLC, who owns the property at issue. Searing has also demonstrated that she is over 70 years old and has health conditions such that preference is necessary to avoid prejudice. Plaintiff is thus entitled to trial preference pursuant to Code of Civil Procedure section 36(a).

Accordingly, the motion for order granting preference for setting trial is granted.