Judge Ralph C. Hofer, Case 22AHCV00519 2023-02-10 Tentative Ruling

Plaintiffs Richard Vartanian and Elvira Vartanian allege that they are an elderly couple and that in December of 2019 defendant Lazaros Georgiadis (Lazaros), on behalf of defendant Lending Star Capital, offered plaintiffs an attractive reverse mortgage on their real property located in Altadena. At the time plaintiffs were in active Chapter 13 bankruptcy due to the fact that the subject property was under foreclosure by the second lienholder. Plaintiffs allege that Lazaros falsely represented himself as a licensed mortgage broker, sent a loan package, and, together with defendant Ivan Torres, proposed that plaintiffs could be provided with a bridge second mortgage loan until plaintiffs could obtain a reverse mortgage to pay off the second deed of trust, provided the plaintiffs would first exit Chapter 13 bankruptcy.

Plaintiffs allege that in January of 2020, Lazaros sent plaintiffs a quote for a reverse mortgage, which was a fabrication since defendants did not open any reverse mortgage case with any reverse mortgage lender, and that plaintiffs were pushed to obtain mandatory counseling and sign the mortgage loan documents, although plaintiffs informed defendants repeatedly that they had no ability to repay the proposed loan.

In February of 2020, upon receiving the escrow papers, plaintiffs learned the identity of the investors, defendants Alex Dourbetas and Christina Dourbetas, who were not licensed mortgage brokers, and it became clear to plaintiffs that the transaction was not a bridge loan at all, but a second mortgage backed by a deed of trust. Plaintiffs then noticed that the payee in the escrow documents had been left blank, and brought that to the attention of Jamie Aguilar, who emailed plaintiffs with a copy of the escrow documents with the Dourbetas defendants typed in as payee.

Plaintiffs allege that at the insistence of defendants they filed a motion for voluntary dismissal of their bankruptcy case. Over the next several months, Lazaros attempted to get plaintiff Richard Vartanian to sign reverse loan documents, falsely assuring plaintiff that his wife could be added later on, when she could not. Plaintiffs learned that Lazaros never opened a reverse mortgage application for them.

In March of 2021, defendant Alex Dourbetas called plaintiffs and left a message stating, “we have a loan on your property, and you cannot pay for some time.” Dourbetas indicated he was considering foreclosing on the property in the next couple of days and wanted to give plaintiffs the opportunity to come up with some arrangement to make the loan. Plaintiffs attempted to meet with Dourbetas to come to an arrangement, but Dourbetas refused, stating that the account had been transferred to a collection agency, and on March 2, 2022,

Dourbetas issued a notice of default, with a sale date set for July 12, 2022, which date has been postponed to August 2, 2022. Plaintiffs allege causes of action for elder abuse, IIED, fraud, cancellation of deed of trust, and quiet title.

The file shows that on August 16, 2022, the court, Judge Leis presiding, signed and filed an Order to Show Cause re Preliminary Injunction and Temporary Restraining Order, and issued an order restraining defendants from proceeding with the trustee’s sale scheduled for August 17, 2022. On September 6, 2022, the court signed and filed an order granting plaintiffs’ unopposed motion for preliminary injunction.

This motion for preference was originally heard on January 6, 2023. The court issued its tentative ruling via posting on LACourt.org website. The tentative ruling had been to deny or continue the motion on the grounds plaintiff had failed to seek available relief but was requesting a trial date outside the 120-day preference period, and that plaintiff had failed to present competent evidence showing that plaintiff Richard Vartanian was over 70 years of age.

The matter was called for hearing and argued, and the court continued the matter to February 10, 2023, ordering that supplemental filing by moving party was due by no later than 01/25/2023, and supplemental opposition was due no later than 02/01/2023.

As an initial matter, the court originally noted that the moving papers and the Non-Opposition are confusing, as both refer to requests that the trial date be set within 120 days, in July of 2023. [See Motion, p. 6:9-10; Non-Opposition, para. 3]. The Non-Opposition indicates availability for a jury trial commencing July 22, 2023. [Non-Opposition, para. 3].

However, once a preference order is granted, the court must set the trial date within 120 days from the date of the granting of the motion for preference, which originally would have been made at the hearing on this motion, on January 6, 2023. Calculating 120 days from the date of the hearing, the trial would have then been required to be set on or before May 6, 2023. Since the hearing has been continued to February 10, 2023, the order would presumably be made on that date. Calculating 120 days from the date of this hearing, the trial would be required to be set on or before June 10, 2023. This date is still before the July, 2023 trial date requested.

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.”

It would appear that none of the parties, including the moving party, are anticipating being prepared to go to trial by June 10, 2023. The motion accordingly does not seek relief which is available under the statutes providing for a preference order, as the trial date sought is not within the 120-day preference window. The court is denying the motion outright because the moving papers request a trial date outside the preference period, particularly given the lack of supplemental papers in support of the motion.

Here, the moving papers fail to meet the initial burden of establishing that moving plaintiff is over the age of 70. The evidence submitted is a declaration plaintiffs’ attorney, who attaches what she attests is a true and correct copy of plaintiff’s Driver’s License, showing his date of birth as August 5, 1935, making him now 87 years old. [Frazee Decl. ¶ 3]. There is no indication that the attorney would have personal knowledge sufficient to authenticate the Driver License attached, and plaintiff’s age or date of birth would also be matters of which the attorney declarant would have no personal knowledge.

Unlike the party’s medical condition, the party’s age is not a fact an attorney is authorized to testify to on information and belief. With such motions, the court ordinarily sees a declaration from the party, not the attorney, attesting to a date of birth and usually an authenticated birth certificate. A declaration under oath by the party plaintiff as to age and date of birth would be sufficient. No such declaration is offered pursuant to a supplemental filing as requested by the court in its January 6, 2023 order.

The court previously noted in its tentative ruling that the motion could be denied on this ground, or the court would consider continuing the motion for submission of admissible evidence concerning plaintiff’s age. The motion was accordingly continued, and there has been no submission of admissible evidence concerning plaintiff’s age. The court denies the motion outright on this ground.

With respect to whether plaintiff has a substantial interest in this action, the moving papers argue that plaintiff was personally abused by defendants in this matter. Counsel’s declaration indicates that moving plaintiff “is critical to this case because in many instances, he is the only witness for plaintiff.” [Frazee Decl., para. 5]. It is clear that plaintiff is one of two plaintiffs in the action, which involves transactions related to plaintiff’s home, and it appears to be undisputed that plaintiff has a substantial interest in the action as a whole.

With respect to whether plaintiff has established that his health is such that a preference is necessary to prevent prejudicing his interest in the litigation, the statute was amended in 1990 so that advanced age alone is not enough to give rise to preference. A party must now show that “the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.”

The legal authorities relied upon in the moving papers all appear to pre-date the amendment, so that plaintiff’s argument that the granting of this motion is mandatory upon a showing that plaintiff is over seventy years of age is outdated, and no longer a correct statement of the law. In addition, as noted above, there has been no sufficient evidentiary showing that plaintiff is over 70 years of age.

The decision to grant or deny a preferential trial setting under CCP § 36 “rests at all times in the sound discretion of the trial court in light of the totality of the circumstances.” Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 344.

“Richard and Elvira have come to my office, and I observed that they were elderly citizens. Richard has complained to me in many emails of his ill health: severe anemia, congestive heart failure, high blood pressure and edema. In fact, he has been hospitalized during the pendency of this proceeding. Recently, he complained about having left hip pain possibly caused by six weeks of radiation between November and December of 2020.”

This declaration is not as clear as it could be in terms of stating a medical diagnosis or prognosis or the belief of plaintiffs’ counsel based on the information she has been provided by plaintiff. However, it is probably sufficient to establish entitlement to a preference order, particularly given the congestive heart failure and recent radiation treatments, which raise a possibility that plaintiff’s interest in the litigation could be prejudiced by these conditions if they affect his ability to meaningfully participate in the trial as time goes on.

In Fox v. Superior Court (2018) 21 Cal.App.5th 529, the court of appeal in response to a petition concerning a trial court order denying a motion for trial preference, reviewed the petition, opposition and supporting documentation, and issued a peremptory writ of mandate directing the respondent superior court to vacate its previous order and grant a new order setting the trial in the matter within 120 days of the court of appeal opinion. The attorney’s declaration in Fox described the elder in that case suffering, besides various cancers, asbestos related disease and severe coronary artery disease, what the attorney described as “’chemo brain’ or a fogginess in thought process that impairs her ability to focus, concentrate and effectively communicate.” Fox, at 531.

“And critically, her mental state has deteriorated to a point where she becomes confused and forgetful. All told, the evidence shows that while Ms. Fox is currently able to participate in a trial, she has good reason for concern that will not be the case for much longer as her health deteriorates.”

“Section 36, subdivision (a), says nothing about “death or incapacity.” Whether there is “substantial medical doubt of survival ... beyond six months” is, to be sure, a matter of specific concern under subdivision (d), but the relevant standard under subdivision (a) is more open-ended. The issue under subdivision (a) is not whether an elderly litigant might die before trial or become so disabled that she might as well be absent when trial is called. Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that that party's “health ... is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.” (Italics added.) Metalclad's proposed reading of subdivision (a), requiring a showing of what amounts to likely unavailability for trial, sets the prejudice standard too high.”

However, the motion as currently presented is denied without prejudice based on the failure of the moving papers to establish by admissible evidence that plaintiff is over 70 years of age, so is a party entitled to seek an order of preference in trial setting. The motion is also denied based on the motion seeking a trial date outside the 120-day period mandated by the trial preference statute.

Motion is DENIED WITHOUT PREJUDICE. Plaintiff has failed to seek available relief but is requesting a trial date outside the 120-day preference period. In addition, plaintiff has failed to present competent evidence showing that plaintiff Richard Vartanian is over 70 years of age, as required under CCP section 36(a). Plaintiff has failed to make this showing despite being permitted an opportunity to submit supplemental briefing.

The Court notes that at the previous hearing on this motion, the court had noted that the moving papers and Non-Opposition referred to requests for a trial date in July of 2023. However, the granting of a preference order at that time would have required trial to be set within 120 days, which would have been by May 6, 2023. The court after hearing argument of the parties continued the hearing to this date for supplemental briefing, which supplemental briefing has not been filed by any party. The court again notes that the granting of a preference order at this hearing, on February 10, 2023, would require trial to be set within 120 days, which would be by June 10, 2023.

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