Judge: Elaine W. Mandel, Case: 24SMCV01030, Date: 2025-05-20 Tentative Ruling

Case Number: 24SMCV01030    Hearing Date: May 20, 2025    Dept: P

Tentative Ruling

Ofshe v. Broukhim, Case no. 24SMCV01030

Hearing date May 20, 2025

Plaintiff Ofshe’s Motion for Trial Preference

Plaintiffs Ofshe sue defendants Broukhim, 535 Chalette Drive, LLC and defendants Adams for trespass and nuisance, alleging mudflows from defendants’ property causes flooding on plaintiffs’ property. Plaintiffs move for trial preference, as R. Ofshe is 83 years old.

Per Cal. Code Civ. Proc. §36(a) a party to a civil action over seventy (70) years of age may petition 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 a whole,” and (2) the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” As used in California Code of Civil Procedure § 36(a), "shall" is mandatory and not merely directory. Roe v. Superior Ct. (1990) 224 Cal. App. 3d 642, 643 n. 2; Miller v. Superior Ct. (1990) 221 Cal. App. 3d 1200, 1204.

Ofshe is 83 years old. Decl. Ofshe paras. 2-3; decl. Trotter paras. 2-3. Ofhse, the plaintiff, has a substantial interest in the case. Defendants do not dispute Ofshe’s interest. Plaintiffs assert Ofshe is in poor health and suffering from a serious medical issue. Id. Plaintiffs offer to provide greater detail at an in camera hearing.

Defendants Broukhim and 535 Chalette Drive, in separately filed oppositions, argue plaintiffs failed to justify the “extraordinary remedy” of trial preference. 535 Chalette Drive Opp. 3: 19-20. Defendants argue plaintiff failed to provide facts establishing Ofshe’s health and the necessity of trial preference. Defendants offer no legal citations or authority establishing plaintiffs’ purported obligation to furnish details regarding Ofshe’s health.

The language of Cal. Code Civ. Proc. §36(a) establishes a party over 70 with a substantial interest and health concerns has a right to trial preference. Plaintiffs furnished declarations establishing Ofshe’s age and deteriorating health. Plaintiffs are not obligated to disclose private health concerns in public filings, and have offered to share greater detail with in camera protections. This is sufficient to grant trial preference.

Defendant 535 Chalette Drive argues granting the instant motion would deprive defendants of due process by forcing them to try the case within 120 days. "No weighing of interests is involved" in deciding whether to grant the instant motion. Fox v. Superior Ct. (2018) 21 Cal.App.5th 529, 230. Defendant 535 Chalette Drive’s argument is unavailing. Motion GRANTED.

The court will discuss scheduling with the parties, keeping in mind the 120 day deadline and the outstanding discovery.