Judge: Bruce G. Iwasaki, Case: 22STCV35007, Date: 2023-05-01 Tentative Ruling
Case Number: 22STCV35007 Hearing Date: May 1, 2023 Dept: 58
Judge Bruce Iwasaki
Department 58
Hearing Date: May 1, 2023
Case Name: Guilana Romano, et al. v. Ruggero Terzuolo, et
al.
Case
No.: 22STCV35007
Motion: Trial Preference
Moving Party: Plaintiffs Giuliana Romano, Tullio Mamola,
and Alma Mamolo
Responding Party: Defendants Ruggero Terzuolo and Ida P. Terzuolo
Tentative Ruling: The Motion for Trial Preference is denied.
Background
This
is an action for partition of commercial real property. Before the Court is a motion for trial
preference under Code of Civil Procedure section 36.
Plaintiffs
Giuliana Romano (Giuliana), Tullio Mamolo (Tullio), and Alma Mamolo (Alma), as
trustee of the First Restatement of the Mamolo Living Trust dated March 11,
1992, (collectively Plaintiffs) move for an order granting a trial preference
and setting the case for trial within 120 days of the hearing.
Plaintiffs
argue that they are entitled to a trial preference under Code of Civil Procedure section 36,
subdivision (a), because (1) they are over the age of 70; (2)
they have a substantial interest in this partition action; and (3) they have
significant health conditions necessitating an early trial date. Alternatively, Plaintiffs argue that they are
entitled to a trial preference in the Court’s discretion under Code of Civil Procedure section 36,
subdivision (e).
Defendants
Ruggero Terzuolo (Roger), and Ida P. Terzuolo (Ida), both as trustees of the
Ruggero Terzuolo and Ida P. Terzuolo 1980 Trusts dated January 24, 1980,
(collectively “Defendants”) oppose the motion arguing, among other things, the
need to complete discovery.
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) [t]he party has a substantial interest in the action as a whole[;
and] (2) [t]he health of the party is such that a preference is necessary to
prevent prejudicing the party’s interest in the litigation.” (Code Civ.
Proc., § 36, subd. (a).)
If the court
makes the requisite finding of fact on a motion for preference under Code of
Civil Procedure section 36, subdivision (a), it has no discretion to deny the
motion due to the use of the word “shall” in the statute. (See Peters
v. Superior Court (1989) 212 Cal.App.3d 218, 224-25; see also Rice v.
Superior Court (1982) 136 Cal.App.3d 81, 89-94.) “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.” (Swaithes v. Superior Court (1989)
212 Cal.App.3d 1082, 1085.) “The trial court has no power to balance the
differing interests of opposing litigants in applying the provision.” (Ibid.)
“The clear intent of the Legislature is to safeguard
litigants who qualify under subdivision (a) of section 36 against the
acknowledged risk that death or incapacity might deprive them of the
opportunity to have their case effectively tried and to obtain the appropriate
recovery.” (Ibid.)
Plaintiffs’
factual showing.
Plaintiffs Alma and
Tullio submit declarations in support of the motion. Plaintiff Alma states she
“takes blood pressure medicine daily and [has] been rushed to the emergency
room due to high blood pressure.” (Alma Decl., ¶ 4.) Her “blood pressure worsens with
stress….” (Id., ¶¶ 5, 8.) She is
“concerned about [her] blood pressure, combined with [her] age, and stress,
puts [her] at risk of stroke.” (Id., ¶ 6.) Further, she “suffer[s] from very painful
spinal stenosis… had surgery for this 4-5 years ago…which has now gotten
worse.” (Id., ¶ 7.) She also states that she has been feeling a high level of
stress because of the litigation and because her “income has been cut off.” (Id., ¶ 9.) Plaintiff Alma “fear[s] that [her] age and
health conditions will affect [her] ability to appear in court to testify and
that [her] presence throughout the trial will become compromised if the case
does not get to trial within the next few months.” (Id., ¶ 31.)
Plaintiff
Tullio’s brief declaration states that he is “generally in a weak condition at
present.” (Tullio Decl., ¶ 4.) He had “a heart attack a
few years ago and was hospitalized…[he is] still under treatment, taking
numerous pills for [his] heart condition.” (Id., ¶ 5.)
He is “tired and usually falls asleep easily during the day.” (Id., ¶ 6.) Further, he was
“diagnosed with meningioma (a brain tumor) a few years ago…which turned out to
be benign.” (Id., ¶
7.) Plaintiff Tullio “fears that [he]
will not have sufficient health to participate in the trial if the litigation
moves too slowly and the trial is delayed.”
(Id., ¶ 10.)
Defendants’
arguments.
Defendants
argue that all necessary parties have not been named. This seems incorrect for this partition
action and is irrelevant to the preference motion. Defendants’ main focus is that granting the preference
motion would provide insufficient time for discovery. At least with respect to Code of Civil
Procedure section 36, subdivision (a), that argument is unavailing. (Swaithes, supra, 212 Cal.App.3d at p.
1085.) Defendants do not dispute Plaintiffs’
declarations. The Court does not base
its ruling on any of Defendants’ arguments.
Discussion.
Plaintiffs have
proffered sufficient evidence satisfying the first two (2) elements articulated
within Section 36, subdivision (a).
First, Plaintiffs have demonstrated that they are above the age of
seventy (70) as Plaintiff Giuliana is 78-years old, Plaintiff Alma is 81-years
old, and Plaintiff Tullio is 85-years old. (Mot., pp. 4-6;
Alma Decl., ¶¶ 2-3, 24;
Tulio Decl., ¶¶ 2-3.) Second, Plaintiffs have demonstrated they
have a substantial interest in this litigation as each Plaintiff
owns twenty-five percent (25%) in the subject commercial real
property with Defendant Roger holding the remaining 25% interest. (Mot., pp. 4-6; Alma Decl., ¶¶ 2-3, 24; Tulio Decl., ¶¶ 2-3.)
However,
Plaintiffs have failed to proffer sufficient evidence satisfying the final
element articulated within section 36, subdivision (a), namely that Plaintiffs’
“health . . . is such that a preference is necessary to prevent prejudicing
[Plaintiffs’] interest in the litigation.” (Code Civ. Proc., § 36, subd.
(a).) The declarations of both Alma and Tullio are noteworthy for their
vagueness. Alma states that she was taken
to the emergency room once for her blood pressure, but provides no details of
when this occurred and what has happened since.
Her statement of concern about her blood pressure is understandable, but
provides no information about why an earlier trial date is “necessary” to
prevent prejudicing her interest in the litigation. The same must be said about her surgery “4-5
years ago,” and her current back and hip pain.
Tullio’s declaration is just as unspecific. He states that he is “generally in a weak condition,”
and “a few years ago” had a heart attack and was hospitalized for three days. He has “regular check-ups,” and takes
medications.
Plaintiffs’ factual
showing stands in contrast to a case in which the Court of Appeal reversed a
trial court’s finding that preference was unnecessary. In Fox v. Superior Court (2018) 21
Cal.App.5th 529, the party seeking trial preference had stage IV
lung cancer which had “metastasized to [her] femur, clavicle, and spine,” and she
also suffered from “asbestosis, asbestos-related pleural disease, severe
coronary artery disease, and anemia.” (Id.
at p. 532.) Further, the plaintiff
received chemotherapy every thee weeks, with side effects including “whole body
aches and pain, severe abdominal and bowel complications, nausea and vomiting,
dehydration, drowsiness, extreme weakness and fatigue,” as well as “a fogginess
in thought process that impairs her ability to focus, concentrate and
effectively communicate.” This showing
qualified under section 36, subdivision (a).
In contrast, the two declarations
offered here indicate that both Plaintiffs have had health problems in that
past, are under a physician’s care, and take medications. Their lawyers have told the Court that they
wish to enter the Property to operate a bakery business, indicating that they
have no incapacity from doing so. The Court finds the factual showing insufficient
to establish that a preference is necessary to prevent prejudicing their interests
in the litigation.
At this
juncture, the Court finds Plaintiffs are not entitled to trial preference
pursuant to Section 36, subdivision (a).
Code of Civil
Procedure section 36, subdivision (e)
“Notwithstanding any other
provision of law, the court may in its discretion grant a motion for preference
that is supported by a showing that satisfies the court that the interests of
justice will be served by granting this preference.” (Code Civ. Proc., §
36, subd. (e).)
“The trial court
does not have the mandatory duty to set a preferential trial date, even when a
statute of limitations deadline approaches, but may exercise its discretion
considering such factors as: (1) the plaintiff's diligence or lack thereof; (2)
prejudice to the defendant of an accelerated trial date; (3) the condition of
the court's calendar; and (4) the likelihood of eventual mandatory dismissal if
the early trial date is denied.” (San Bernardino City Unified Sch. Dist. v.
Superior Court (1987) 190 Cal. App. 3d 233, 238; Salas v. Sear, Roebuck
& Co. (1986) 42 Cal.3d 342, 349.)
Plaintiffs
alternatively move pursuant to Code of Civil Procedure section 36, subdivision (e) (hereinafter “section
36, subdivision (e)”) in the interest of justice. The Court finds Plaintiffs are not entitled
to trial preference in the Court’s discretion pursuant to section 36,
subdivision (e). The Court finds that that
there is still an extensive amount of discovery that needs to take place, for
example, Plaintiffs have yet to take the depositions of Defendants; Defendants
will depose each of the Plaintiffs within the next 75 days (expecting to finish
in June); and Defendants will propound and receive responses to written
discovery. (Opp., p. 2.) Accelerating the trial date would prejudice
Defendants, and therefore, the Court finds Plaintiffs are not entitled to trial
preference in the Court’s discretion pursuant to section 36, subdivision (e).
Based on the
foregoing, Plaintiffs’ motion for trial preference is denied.