Department 58

Hearing Date: September 30, 2022

Case Name: Claire P. Shetz v. Tyrone L. Hudson, et al.

Case No.: 22STCV22211

Motion: Motion for Trial Setting Preference

Moving Party: Plaintiff Claire P. Shetz

Opposing Party: Defendants Tyrone Hudson and Christine Hudson

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

This is an action for declaratory relief as to a tenancy. Claire P. Shetz (Plaintiff) sues Tyrone L. Hudson, Christine Hudson, Melissa Grace, and JAG Financial Investments Inc. for violations of the Fair Employment and Housing Act, Disabled Persons Act, Elder Abuse and Dependent Adult Civil Protection Act, and the Los Angeles Tenant Harassment Ordinance.

Plaintiff is a tenant residing in a duplex owned by Tyrone L. Hudson and Christine Hudson (Defendants). She alleges that Defendants tried to list the property for sale; however, because Plaintiff is elderly and immunocompromised, the parties agreed to limit access to the duplex for marketing purposes. The Complaint avers that Defendants breached this accommodation and allowed numerous individuals into Plaintiff’s home.

Plaintiff moves for a court order granting preference for trial because she is 94 years old, has a substantial interest in the action, disabled, and immunocompromised. Defendants opposed the motion, arguing that Plaintiff has not provided medical documentation under Code of Civil Procedure section 36, subdivision (d). Plaintiff replied, contending that she is not moving for preference under subdivision (d).

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 her counsel, Frances M. Campbell, and her physician, Allison Moser Mays. They attest that Plaintiff is 94 years old, suffers from an infectious disease similar to Tuberculosis, and is immunocompromised. (Mays Decl., ¶ 2.) Her life expectancy is three years. Campbell Decl., ¶ 2.)

The Court finds that Plaintiff has substantial interest in this action, given that she is the named plaintiff. She has 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, subdivision (a).

Defendant’s opposition contends that preference should be denied under the Court’s discretionary authority in Code of Civil Procedure section 36, subdivision (d). But Plaintiff is requesting preference under subdivision (a), not subdivision (d). Relief under subdivision (a) is mandatory and the Court does not weigh any interests. (Rice v. Superior Court (1982) 136 Cal.App.3d 81, 86-87; Fox v. Superior Court, supra, 21 Cal.App.5th at p. 535.) Thus, Defendants’ arguments as to the interests of justice and prejudice is not well-taken. (See Niesner v. Kusch (1986) 186 Cal.App.3d 291, 299 [“Unlike section 36, subdivision (d), where the granting or denying of a motion for trial preference lies in the sound discretion of the trial court [citations], section 36 subdivision (a), requires a trial court to give preferential trial setting to any civil case upon the motion of a party to that action who has reached the age of 70, irrespective of the circumstances leading to the motion for preference”].)

Accordingly, the motion for order granting preference for setting trial is granted. The Court shall set a trial date at the hearing.