Judge: Michael E. Whitaker, Case: 24SMCV05463, Date: 2025-05-07 Tentative Ruling

Case Number: 24SMCV05463    Hearing Date: May 7, 2025    Dept: 207

TENTATIVE RULING

MOTION

This case arises from allegations that Plaintiffs’ home was destroyed in a mudslide caused by Defendants’ negligence. 

On November 5, 2024, Plaintiffs Farnaz Yashar (“Yashar”) and Houshang Neyssani (“Neyssani”) (together, “Plaintiffs”) filed suit against Defendants Angelo View Associates, LLC (“Angelo”); J.D. Group, Inc. (“J.D.”); Greenleaf Engineering (“Greenleaf”) and Michael Scott (“Michael Scott”) (together, “Defendants”) alleging four causes of action for (1) negligence; (2) premises liability; (3) trespass; and (4) nuisance. 

Plaintiffs now move for trial preference on the grounds that Neyssani is 81 and his health is such that preference is necessary.  Defendants Angelo, Scott, and Greenleaf (“Opposing Defendants”) oppose the motion and Plaintiffs reply.

REQUEST FOR JUDICIAL NOTICE

            Opposing Defendants request judicial notice of “property report for 10094 Cielo Drive, Beverly Hills, California, dated April2 2, 2025, acquired from LexisNexis, containing ownership history and property data indicating the chain of title and sale transactions from 1989 through 2023, including transfers involving Hooman Nissani.” 

            Courts may take judicial notice of “Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”  (Evid. Code, § 452, subd. (h).)

Courts can take judicial notice of the existence and recordation of real property records, including deeds, if authenticity is not reasonably disputed.  (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.)  “The official act of recordation and the common use of a notary public in the execution of such documents assure their reliability, and the maintenance of the documents in the recorder’s office makes their existence and text capable of ready confirmation, thereby placing such documents beyond reasonable dispute.”  (Ibid.)  Moreover, courts can take judicial notice not only of the existence and recordation of recorded documents but also matters that can be deduced from the documents, including the parties, dates, and legal consequences of recorded documents relating to real estate transactions.  (Ibid.) 

But Opposing Defendants have not presented the Court with copies of notarized and recorded real property records.  Instead, Opposing Defendants present the Court with a report from third party LexisNexis.  As such, the records presented are not “beyond reasonable dispute” nor is LexisNexis necessarily a source of “reasonably indisputable accuracy” when it comes to real property records.

Therefore, the Court denies Opposing Defendants’ request for judicial notice of the LexisNexis report.

LEGAL STANDARD

Code of Civil Procedure section 36 provides in part: “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.”

Pursuant to Code of Civil Procedure section 36, subdivision (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 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.  Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party.” 

A court may not be excused from setting the trial for preference due to court congestion.  (Sprowl v. Superior Court (Raymark Industries) (1990) 219 Cal.App.3d 777, 781.)

ANALYSIS

Plaintiffs argue that trial preference is warranted because Neyssani, who is 81 years old, suffered from a recent fall, and his health continues to decline as he ages.  (Neyssani Decl. ¶¶ 6-7 and Ex. 1.) 

Neyssani has attached medical records in support of the motion that demonstrate the following:

·       On May 19, 2024, he was admitted to the intensive care unit and then released to the critical care unit where he remained admitted a few days later, suffering from respiratory distress.

·       On June 6, 2024, he was again admitted to the intensive care unit and then released to the critical care unit where he remained admitted a few days later, suffering from respiratory distress and experiencing limited mobility.

·       On July 9, 2024, Nissani was admitted to Ronald Reagan UCLA Hospital, where he was admitted to the intensive care unit on July 15, 2024, where he remained for a period of 32 days, before being released on August 16, 2024.  Upon discharge, Nissani was advised to remain on bedrest.

·       On August 23, 2024, Nissani was admitted to the emergency room after suffering a fall, where he was admitted to the critical care unit for a 24-hour observation.  Upon discharge, Nissani was advised to remain on bedrest.

Opposing Defendants oppose the motion on the grounds that (1) Neyssani does not have a substantial interest in the action because he does not own the subject property and (2) setting the case for trial within 120 days of the hearing on the motion would prejudice Defendant because there is insufficient time to investigate and conduct discovery.

Because the Court denies Opposing Defendants’ request for judicial notice, the Court finds that Neyssani, as a plaintiff to the action, has a substantial interest in the action as a whole.  However, the Court does not find Plaintiffs have met their burden to demonstrate that Neyssani’s health is such that a preference is necessary to prevent prejudicing Neyssani’s interests in the litigation.

Although Plaintiffs have produced evidence that approximately a year ago, Neyssani had several health struggles in or about the summer of 2024, there is no evidence demonstrating that Neyssani currently experiences any health issues that jeopardize his ability to participate in an October 19, 2026 trial, as currently scheduled.

CONCLUSION

            Therefore, finding Plaintiffs have failed to meet their burden of proof to establish that Neyssani’s current health condition warrants a trial preference the Court denies Plaintiffs’ request for trial preference without prejudice. 

            Plaintiffs shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.    

DATED:  May 7, 2025                                                           ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court