Judge Kerry Bensinger, Case Number: 23STCV18512, Date: 2025-01-29 Tentative Ruling

CASE: Pilar Luna-Sinay, et al. v. Kester Greens Condominium Association, et al.

RESPONDING PARTIES: Defendants Kester Greens Condominium Association & H.O.A. Management Professionals, Inc.

Plaintiffs Pilar Luna-Sinay and Rodolfo Sinay reside in a home that is part of defendant Kester Greens Condominium Association. Plaintiffs allege that her homeowners association did not maintain the exterior building envelope, which allowed water to enter her residence.

Plaintiffs sue the condominium association and the homeowners association for the following: (1) breach of governing documents; (2) breach of fiduciary duties; (3) breach of good faith and fair dealing; (4) unfair business practices; and (5) discrimination.

On January 15, 2025, defendants Kester Greens Condominium Association and H.O.A. Management Professionals, Inc. filed an opposition.

Code of Civil Procedure section 36, subdivision (a) states: “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 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.”

Further, Code of Civil Procedure section 36.5 states that an affidavit submitted in support of a motion for preference 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.

In its discretion, the court may also grant a motion for preference accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference. (Code Civ. Proc., § 36, subd. (d).)

California Rules of Court, rule 3.1335(b) provides that a party’s request to specially set a case for trial “may be granted only upon an affirmative showing by the moving party of good cause based on a declaration served and filed with the motion…”

Plaintiff Pilar Luna-Sinay argues that Plaintiff is 75 years old, and a preference is necessary to prevent prejudicing Plaintiff’s interest in the litigation. Plaintiff also argues that her health is declining. She submits her own declaration, which states that she experiences breathing difficulties because of the purported mold in her home, she has difficulty walking up the stairs in her home, and she has trouble sleeping. (Decl. Luna-Sinay, ¶¶ 6, 7, 11.)

The Court denies the motion because there is no attorney declaration about Plaintiff’s medical diagnosis and prognosis. Further, Plaintiff has not submitted “clear and convincing medical documentation that concludes [she] … suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months.”

Kerry Bensinger

Judge of the Superior Court