Judge: Deirdre Hill, Case: 22TRCV01239, Date: 2023-04-05 Tentative Ruling

Case Number: 22TRCV01239    Hearing Date: April 5, 2023    Dept: M

Hearing Date:                          April 5, 2023

Moving Parties:                      Plaintiff Burton Danet

Responding Party:                  None

Motion for Trial Preference

            The court considered the moving papers.  No opposition was filed.

RULING

            The motion is GRANTED.  The FSC is set for  07/26/2023 at 10AM.   The trial is set for

08/02/2023 at 10AM.

BACKGROUND

On November 15, 2022, plaintiff Burton Danet filed a complaint against Sufan Ott for (1) breach of implied warranty of habitability, (2) breach of covenant of quiet enjoyment, (3) IIED, and (4) negligence.  Plaintiff alleges that on December 30, 2018, plaintiff entered into a monthly lease agreement with defendant for lease of an apartment at 3120 Sepulveda Blvd., Unit 114, Torrance.  On numerous occasions, defendant was made aware by plaintiff, and others, including on-site managers, of recurring plumbing issues, HVAC issues, potential leaks, and suspected water intrusion, including into walls, ceilings, floors, and in areas inaccessible to plaintiff, within and outside of the apartment.  Defendant failed to properly remedy or remediate these conditions.  On numerous occasions, defendant was made aware of mold in and near the apartment, and in the HVAC system and ducts.  Defendant did nothing or otherwise failed to address, remediate, or warn of toxic mold in and near the apartment.  As a result, plaintiff has suffered injuries.

On February 21, 2023, defendant filed an answer.

LEGAL AUTHORITY

CCP §36 states, in relevant part:  “(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 whole.  (2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. . . . (c)  Unless the court otherwise orders:  (1)  A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared. (2)  At any time during the pendency of the action, a party who reaches 70 years of age may file and serve a motion for preference. . . . (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.  (f) 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. . . .”

            CCP §36.5 states, “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.”

            “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 express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations.”  Swaithes v. Superior Court (1989) 212 Cal. App. 3d 1082, 1086-87 (citation omitted).

DISCUSSION

            Under CCP §36(a) and (e), plaintiff Burton Danet requests an order granting a trial preference and specially setting the trial date no later than 120 days from the date of the order.

            Plaintiff asserts that he is 83 years old, born on July 23, 1939.  He has a substantial interest in the action as a whole.  According to plaintiff’s counsel’s declaration, plaintiff is under the regular care of a cardiologist for multiple cardiac conditions, including three prior ischemic cerebral infarctions (strokes), hypertension, high blood pressure, and an embedded cardiac pacemaker.  Plaintiff further has been prescribed lifelong anticoagulation given his prior strokes.  As a result of his strokes, he suffers from Dejerine-Roussy syndrome, including pain, paresthesia, and numbness.  Neer Lerner decl., ¶4.  Plaintiff is under the regular care of a pulmonologist for management of several pulmonary conditions, including a December 2019 right middle lobe pulmonary embolism, history of pulmonary nodules, interstitial markings revealed on a November 2, 2022 chest x-ray, obstructive sleep apnea, and substantial breathing issues requiring regular use of a CPAP machine.  Id., ¶5.  He is also under the regular care of a dermatologist for history of basal cell carcinoma in his scalp.  Id., ¶6.  He has a caregiver during the day, seven days a week.  Id., ¶7.  Plaintiff’s counsel states “[u]pon information and belief, Plaintiff’s health is such that preference is necessary to prevent prejudicing Plaintiff’s interest in the litigation.  Plaintiff is of advanced age, and has serious medical conditions and as a result may die or become incapacitated before the case comes to trial.”  Id.

            There is no opposition.

            The court finds that plaintiff is over 70 years old.  He has a substantial interest in the action as whole.  Further, the health of plaintiff is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.

            The motion is thus GRANTED.

            Plaintiff is ordered to give notice.