Judge: Cherol J. Nellon, Case: 25STCV02023, Date: 2025-05-28 Tentative Ruling
Case Number: 25STCV02023 Hearing Date: May 28, 2025 Dept: 14
#15
Case Background
This is an action for breach of contract, breach of the
implied covenant of good faith and fair dealing, breach of fiduciary duty,
unfair business practices, intentional infliction of emotional distress (IIED),
fraud, negligent misrepresentation, concealment, violation of the Consumer Legal
Remedies Act (CLRA), violation of Insurance Code section 678, violation of the
Unruh Act, negligence, and concealment.
As alleged in the Complaint: Gary and Marjorie Rand
were long term insureds of Defendants. After the Rands’ home was damaged in
Hurricane Hilary, their insurance claim was denied. Plaintiffs allege
Defendants failed to properly assess the claim, threatened the insureds, and
ultimately denied the claim unreasonably. After Marjorie Rand passed,
Defendants failed to notify her successors of a non-renewal of her insurance
policy.
On January 24, 2025, Plaintiffs Gary Rand (“Mr. Rand”),
as Trustee for the Gary Rand Trust, and Suzanne E. Rand-Lewis (“Ms.
Rand-Lewis”), as Trustee for the Marjorie L. Rand Trust, as Trustee for the
Suzanne E. Rand-Lewis Trust, and as successor in interest to Marjorie L. Rand
(together “Plaintiffs”) filed their Complaint against Defendants Farmers Group,
Inc., Farmers Insurance Exchange, John Laurenzi, Laurenzi Insurance Agency,
Inc., Seek Now, Inc. (Seek Now), and Anthony Martinez.
Plaintiffs now move for preferential trial setting
pursuant to Code of Civil Procedure section 36, subdivision (a) and (e), based
on Mr. Rand’s age, health, and substantial interest in the action. Plaintiffs
also argue Ms. Rand-Lewis has a substantial interest and “her health is such
that preference is necessary to prevent prejudice to Plaintiffs.” (Not. of
Mot., 2:2-3.)
Plaintiffs filed their motion on February 28, 2025. Defendants
Farmers Group and Farmers Insurance Exchange filed an opposition on May 14,
2025. Defendants Seek Now and Martinez filed a separate opposition the same
date. Defendants Laurenzi and Laurenzi Insurance Agency filed a separate
opposition and a notice of joinder to Seek Now and Martinez’s opposition on the
same date. On May 20, 2025, Plaintiffs replied.
Instant Pleading
Plaintiffs move for trial preference based on Code of
Civil Procedure section 36, subdivisions (a) and (e).
Decision
The motion is DENIED without prejudice.
Discussion
“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, subdivision (a).)
A motion made under Code of Civil Procedure section 36,
subdivision (a) “may be supported by nothing more than an attorney’s
declaration ‘based upon information and belief as to the medical diagnosis and
prognosis of any party’. [Citation.]” (Fox v. Superior Court
(2018) 21 Cal.App.5th 529, 534, citing Code Civ. Proc., § 36.5 [“[a]n affidavit
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 may also consist entirely of hearsay and conclusions. (Id.)
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.)
It is undisputed that Gary Rand is more than seventy
years old. (Rand-Lewis Decl., ¶ 3.) However, the evidence in support of his
motion is insufficient to justify preference. Mr. Rand relies solely on the
declaration his co-plaintiff and daughter, Suzanne Rand-Lewis, who is not a
medical professional. She does not attest to the specifics of any medical
condition or its prejudice to Mr. Rand’s interest in the action: rather, she
lists four “issues” and “conditions . . . such that [Mr. Rand] has
exceeded his expected life span.” (Id., ¶ 5.) Sections 36 and 36.5 call
for information regarding diagnosis and, crucially, prognosis. Ms. Rand-Lewis’
vague declaration does not satisfy the standard.
Ms. Rand-Lewis also does not demonstrate any need for
preference. She does not attest she satisfies the age requirements of section
36, and her declaration is similarly vague regarding her own health.
Defendants also argue Mr. Rand lacks a substantial
interest in the action as a whole because his claims only arise from damage to
his own house, not the house owned by Marjorie Rand, both of which are subject
to this action. Defendants’ point is well-taken.
The motion is denied, without prejudice.
Conclusion
The motion is DENIED without prejudice.