Judge: Melvin D. Sandvig, Case: 22CHCV000353, Date: 2023-08-03 Tentative Ruling

Case Number: 22CHCV000353    Hearing Date: August 3, 2023    Dept: F47

Dept. F47

Date: 8/3/23

Case #22CHCV00353

MOTION FOR TRIAL PREFERFENCE

Motion filed on 4/18/23.

MOVING PARTY: Defendants and Cross-Complainants Armand Vincent Garcia and Garcia Family Trust

RESPONDING PARTY: Plaintiff/Cross-Defendant Honest Home Improvement, Inc. and Cross-Defendants Honest Plumbing and Rooter and Benjamin Garcia

NOTICE: ok

RELIEF REQUESTED: An order granting trial preference in this case. 

RULING: The motion is denied without prejudice. 

On 5/20/22, Plaintiff Honest Home Improvement Inc. filed this action against Defendants Armand Vince Garcia and Garcia Family Trust for: (1) Breach of Contract, (2) Quantum Meruit, (3) Intentional Misrepresentation, (4) Negligent Misrepresentation, (5) Fraud, (6) Unjust Enrichment, (7) Common Count and (8) Foreclosure of Mechanic’s Lien.  On 6/24/22, Defendants answered the complaint and filed a cross-complaint against Honest Home Improvement, Inc. and Cross-Defendants Honest Plumbing and Rooter and Benjamin Garcia for: (1) Breach of Contract, (2) Promissory Fraud, (3) Fraudulent Concealment, (4) Financial Elder Abuse, (5) Contractual Interference and (6) Constructive Trust.  On 8/15/22, cross-defendants answered the cross-complaint. 

On 4/18/23, Defendants/Cross-Complainants filed and served the instant motion seeking an order granting trial preference in this case on the ground that Armand Vincent Garcia is 82 years old and has certain health issues.  (See Garcia Decl.). 

CCP 36(a) provides:

“(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 a whole.

(2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.”

As a defendant and cross-complainant in this action, Armand Vincent Garcia has a substantial interest in this action as a whole. 

Defendant Garcia has submitted his own declaration wherein he claims that he is in ill health because he suffers from high blood pressure, severe arthritis and increasing memory issues.  (Garcia Decl.).  Based on the foregoing, Defendants/Cross-Complainants contend that they are entitled to have trial set within 120 days.  See CCP 36(f).

CCP 36.5 provides:

“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.”

The instant motion is not supported by a declaration from a physician or counsel.  Rather, only a declaration from Mr. Garcia has been provided.  Even if a declaration from the party were sufficient, Mr. Garcia’s declaration does not explain how failing to grant trial preference based on his health issues mentioned in the declaration is necessary to prevent prejudicing his interests in the litigation.  As such, Defendants/Cross-Complainants have not met their burden on this motion.