Judge: Michael C. Kelley, Case: 22AVCV00263, Date: 2022-08-30 Tentative Ruling

Case Number: 22AVCV00263    Hearing Date: August 30, 2022    Dept: A15

Background

This action was filed on April 20, 2022 by Plaintiff Richard J. Borin against Defendants Melissa Dyan Bluhm, Richard Bluhm, Big Block Realty, Inc., Oakmont of Santa Clarita, and Oakmont of Riverpark. Plaintiff accuses Defendants Melissa Dyan Bluhm and Richard Bluhm of wrongfully taking his personal property and forging checks from his bank account, under the guise of helping him move into a home at Oakmont of Riverpark. He is alleging causes of action for (1) elder financial abuse, (2) intentional infliction of emotional distress, (3) breach of contract, (4) breach of fiduciary duty, (5) aiding and abetting a breach of fiduciary duty, (6) fraud, (7) constructive fraud, (8) conspiracy to defraud, (9) negligent misrepresentation, (10) conversion, (11) promissory estoppel, and (12) unfair business practices.

There is currently a stay pending arbitration, pursuant to a stipulation between Defendants Oakmont of Santa Clarita and Oakmont of Riverpark (collectively, the “Oakmont Defendants”) and Plaintiff.

All the defendants have appeared. Defendant Richard Bluhm has filed a cross-complaint against the Oakmont Defendants.

Plaintiff filed the instant Motion for Trial Preference and for Correction of Clerical Error on August 4, 2022. The Oakmont Defendants filed a timely Opposition and an objection to the motion. Plaintiff filed a timely Reply.

Analysis

The Oakmont Defendants’ Objection and Plaintiff’s “Request for Correction of Clerical Error”

“[T]rial courts have the power to sever arbitrable claims from inarbitrable ones and to stay either the arbitration or the judicial proceedings pending the outcome of the other.” (Doan v. State Farm General Ins. Co. (2011) 195 Cal.App.4th 1082, 1098–1099.) The court may choose to limit the stay to the arbitrable issue only. (Code Civ. Proc., § 1281.4.)

Once the court stays an action for arbitration,

the action at law sits in the twilight zone of abatement with the trial court retaining merely a vestigial jurisdiction over matters submitted to arbitration. This vestigial jurisdiction over the action at law consists solely of making the determination, upon conclusion of the arbitration proceedings, of whether there was an award on the merits (in which case the action at law should be dismissed because of the res judicata effects of the arbitration award [Citations]) or not (at which point the action at law may resume to determine the rights of the parties).

(Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1796.)

The Oakmont Defendants object to Plaintiff’s Motion for Trial Preference on the grounds that the “entire case” has been stayed pending the outcome of arbitration. (Oakmont Obj. Mot. Trial Preference at 2.) Plaintiff argues his Motion for Trial Preference only pertains to the other defendants, not the Oakmont Defendants.

Plaintiff also argues the stipulation to stay the action was only meant to apply to the issues between Plaintiff and the Oakmont Defendants; it was not meant to stay the entire action. Plaintiff notes that a case management conference was taken off calendar under the misunderstanding that the entire action was stayed, and insists this was a mistake. He therefore “requests” the Court interpret the stipulation to pertain only to the Oakmont Defendants.

The Court agrees with Plaintiff that the language of the stipulation clearly indicates that the stay applies only to the issues between Plaintiff and the Oakmont Defendants, and does not pertain to Defendants Melissa Dyan Bluhm, Richard Bluhm, or Big Block Realty: The stipulation stated it was between Plaintiff and the Oakmont Defendants, and was only signed by their counsel. It stated that they “agree and stipulate to arbitrate all issues and causes of action alleged by plaintiff RICHARD BORIN against Defendants, OAKMONT OF SANTA CLARITA and OAKMONT OF RIVERPARK . . . .” (Stip. Stay Compl. ¶ 2.) It was lodged with a copy of the subject arbitration agreement, which was only signed by Plaintiff and Defendant Oakmont of Riverpark.

The stipulation only refers to Plaintiff and the Oakmont Defendants. It makes no mention of the other three defendants. Therefore, the Court agrees the action is stayed only as to Plaintiff’s claims against the Oakmont Defendants.

As such, the Oakmont Defendants’ objection to the Motion for Trial Preference is SUSTAINED as it pertains to them. The Court has no jurisdiction to rule on a Motion for Trial Preference during a stay for arbitration.

Furthermore, Plaintiff correctly requests the Case Management Conference must be rescheduled. As the Court has the inherent authority to manage its processes and proceedings, the Court shall reschedule the Case Management Conference as to Defendants Melissa Dyan Bluhm, Richard Bluhm, and Big Block Realty, Inc. (collectively, the “Bluhm Defendants”), only. (Code Civ. Proc., § 128.)

Motion for Trial Preference

Code of Civil Procedure section 36 provides, “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” finds the party “has a substantial interest in the action as a whole” and the party’s health “is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” (Code Civ. Proc., § 36, subd. (a).)

A case that is granted preference must be set for trial “not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party's attorney, or upon a showing of good cause stated in the record.” (Code Civ. Proc., § 36, subd. (f).)

“The standard under subdivision (a) . . . includes no requirement of a doctor's declaration. To the contrary, a motion under 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.’ [Citations.]” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534.)

Once a party “meets the requisite standard for calendar preference under subdivision (a), preference must be granted. No weighing of interests is involved.” (Fox v. Super. Ct., supra, 21 Cal.App.5th at 535.) This is so, even against the opposing party’s “interest in having adequate time to prepare for trial.” (Ibid.)

Here, Plaintiff moves for trial preference as to the claims against the Bluhm Defendants, and for arbitration with the Oakmont Defendants to be held within 120 days.

Plaintiff is entitled to trial preference. He clearly has a substantial interest in the action, since he is the sole plaintiff. The evidence shows he is 76-years old. (See Pl.’s Mot. Trial Preference at Decl. Frazee ¶ 2 & Ex. A.) His attorney attests that his health is declining, which is exhibited by the fact that he receives 24-hour assistance from caregivers. There is no evidence to the contrary. Plaintiff is a key witness, and would not be able to meaningfully present his case without his testimony; and his declining health puts his ability to testify at risk. Thus, preference must be granted.

However, the effect of preference under Code of Civil Procedure section 36 is that “the court shall set the matter for trial not more than 120 days from that date . . . .” (Code Civ. Proc., § 36, subd. (f), emphasis added.) Nothing in this statute gives the court authority to grant “preference” to an arbitration, and the case law suggests the court does not have such authority. Therefore, Plaintiff’s request for a preferential arbitration date cannot be granted.

Conclusion