Judge Olivia Rosales, Case Number: 23NWCV01153, Date: 2023-09-15 Tentative Ruling

Judge: Olivia Rosales, Case: 23NWCV01153, Date: 2023-09-15 Tentative Ruling

Case Number: 23NWCV01153 Hearing Date: September 15, 2023 Dept: F

Charnetsky v. Aronson

CASE NO.: 23NWCV01153

HEARING: 9/15/23 @ 10:30 AM

JUDGE: OLIVIA ROSALES

Plaintiffs’ Motion for Trial Preference is GRANTED.

Moving Party to give NOTICE.

Plaintiffs move for trial preference pursuant to CCP § 36.

Background

In an underlying US bankruptcy case, the Buenviajes filed and confirmed a Chapter 11 plan (Plan) for themselves and their company LBJ Healthcare Partners (LBJ) on December 15, 2020. The Plan included a payment schedule for the Buenviajes and LBJ making monthly payments totaling approximately $9,000.00 and held in trust by Defendants. The payments were to be held in trust while a claim for sanctions by the Buenviajes and LBJ against Plaintiffs is litigated in the US District Court. Defendants represented the Buenviajes and LBJ in the bankruptcy case.

On April 13, 2023, Plaintiffs filed this complaint alleging: (1) negligence; (2) breach of fiduciary duty; (3) breach of fiduciary duty-imposition of constructive trust; (4) conversion; (5) accounting; (6) civil penalties under Penal Code § 496(c); (7) declaratory relief; and (8) injunctive relief. Plaintiffs filed this application on May 30, 2023.

Legal Standard

“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.”

(CCP § 36(a).)

Discussion

Defendant’s arguments regarding jurisdiction were denied by this Court on Defendant’s Demurrer. Thus, such arguments will not be considered again on hearing of this Motion.

Here, Plaintiffs Leticia Charnetsky and Victor Charnetsky have substantial interests in the action as a whole as they are two of the three Plaintiffs in this action. Additionally, they submitted declarations demonstrating that they are over the age of 70 and their health may prejudice the parties’ interests. Defendant argues that Plaintiffs have not provided evidence of their health, however, CCP § 36(a) does not require evidentiary showing beyond a declaration. (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534-535.)

Accordingly, Plaintiffs’ Motion for Trial Preference is GRANTED.