Judge Ralph C. Hofer, Case Number: 22GDCV00718, Date: 2024-02-02 Tentative Ruling

Plaintiffs Bobby Jace, Sally Jace and Valerie Frank allege that in 2017 they began residing as tenants in residential real property in Glendale, which was owned by defendant Ara Kalfayan. Plaintiffs allege that the property was managed by defendant Aripinee Bedikian during plaintiffs’ tenancy. The FAC alleges that plaintiffs’ tenancy was covered under the Los Angeles Rent Stabilization Ordinance, the California Protection Act of 2019, and the Los Angeles County COVID-19 Moratorium.

The FAC alleges that during their tenancy, plaintiffs suffered numerous habitability defects, including a lack of heat, cockroach infestation and water intrusion. It is also alleged that in response to plaintiffs’ complaints, defendants did not respond meaningfully, requiring plaintiffs to remediate issues and make repairs at their own significant expense, and eventually defendants harassed and retaliated against plaintiffs. The FAC alleges that ultimately defendants demanded that plaintiffs vacate the property and served plaintiffs with an unlawful termination of tenancy notice in April of 2022, at a time when the County of Los Angeles prohibited no-fault evictions. Plaintiffs allege that they were forced to vacate their home of approximately five years in June of 2022, and that as a result of defendants’ conduct and unlawful actions suffered actual damages and emotional distress.

The FAC alleges causes of action for negligence, negligence per se, breach of the warranty of habitability, breach of the covenant of quiet enjoyment, nuisance, trespass, wrongful eviction in violation of the California Tenant Protection Act of 2019, wrongful eviction in violation of the Los Angeles County COVID-19 Moratorium, wrongful evidence in violation of the California Civil Code, constructive eviction, violation of California unfair competition law, and IIED.

“Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.”

Weil & Brown note that this subdivision can be invoked where a delay would greatly prejudice a party’s ability to present its claims, where, for example, a party has a debilitating mental or physical disease, even though the illness is not terminal, or where advancing senility may impair the party’s ability to participate in the litigation, or where a party’s impending departure and inability to return, for example, entering military service or moving permanently, present circumstances where it would be “impossible or economically burdensome to return for trial.” Weil & Brown, Civ. Proc. Before Trial (Cal. Practice Guide, The Rutter Group, 2023 rev.) 12:257.1 and 12:257.2. This subdivision accordingly appears to be directed to the ability of a party to pursue its claim on its merits, and the irreparable harm from the loss of essential evidence.

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.

Plaintiff argues here that the interests of justice would be satisfied by granting a preference because plaintiff Sally Jace, in approximately 2013, suffered four strokes, and has since then suffered persistent memory loss, which makes it difficult for her to remember dates, facts and other important details surrounding her life since the strokes, including the tenancy at the property. Plaintiff argues that it would be in the interests of justice to allow plaintiff Sally Jace equal protection, in effect, the opportunity to provide trial testimony and undergo cross-examination equipped in the sharpest state before the effects of her stroke take effect.

Plaintiff also argues that the parties will not suffer any prejudice, as the parties have had more than a year to conduct discovery and prepare for trial. Plaintiff argues that both defendants have been deposed, as have plaintiffs Bobby Jace and Sally Jace. The opposition indicates that all three plaintiffs have since been deposed.

2. In approximately 2013, I had four (4) minor strokes on the left side of my brain. As a result of the strokes, I was hospitalized for about ten (10) days. I was hospitalized at Cedars-Sinai Medical Center in Los Angeles, and Providence Saint John’s Health Center in Santa Monica, California. My medical professional’s [sic] told me that the stroke impacted the left chemistry of my brain, which my doctor told me effects memory and speech. Although I survived the stroke, I had several remaining medical issues, including persistent memory loss.

4. With each passing date, memory of my life at the property fades at a more rapid pace than the average person. I fear that if the trial is not held within the next three (3) or four (4) months, I will not be able to offer the best trial testimony. The effects of strokes will take effect and I will not be in the sharpest state I can be to undergo direct and cross examination.”

“Plaintiff SALLY JACE and I have discussed her stroke event several times during the representation. She has described the series of strokes to me, her hospitalizations at CedarsSinai Medical Center and Providence Saint Joseph Medical Center, and the strokes’ impacts. She has repeatedly told me that she will not be able to remember critical dates and particulars about the case, should it be tried in late 2024 or 2025. As trial is currently set for December 24, 2024, it is my belief that Plaintiff JACE will not be able to effectively testify during direct or cross examination, unless the Court grants this Motion for Preference.”

Defendants in opposition argue that plaintiff has cited no authority supporting memory loss as a basis for preferential trial setting under CCP section 36, subdivision (e), and have not offered any supporting medical documentation in support of the motion.

Defendants argue that the preference statute does not expressly recognize that purported memory loss or mental capacity warrants a trial preference but includes only three specific scenarios—when a party is over 70 years of age, when a party is under the age of 14 in certain cases, and when it is doubtful that a party will survive for more than six months. CCP section 36 (a)-(d). Defendants argue that the motion is not brought under the mandatory provisions of subdivisions (a) and (b), but the discretionary provision of subdivision (e), which still requires the moving party provide a “showing that satisfies the court that the interest of justice will be served by the preference,” which plaintiff has failed to do. Defendants argue that purported memory loss is not the type of condition contemplated by the statute, as otherwise every plaintiff could claim that due to the passage of time their memory has diminished and seek preference.

It is true that plaintiff has not cited any legal authority under which memory loss is expressly recognized as a basis for a preference order. As discussed above, however, the loss of essential evidence during the time awaiting trial appears to be within the contemplation of the discretionary relief permitted in subdivision (e). However, while commentators have noted that a debilitating mental or physical condition short of a terminal illness would be sufficient, it does not appear that a showing of a fading memory alone would be enough to warrant relief. This conclusion would appear particularly true here, where plaintiff and her counsel report no specifics beyond an inability to recall details, and report no specific medical diagnosis or prognosis, and it is not disputed that plaintiff has already been deposed in this matter, so her current testimony has been preserved if a loss should occur in the additional months before trial. Weil and Brown comment with respect to the court’s discretion permitted under section 36 subdivision (e):

“Generally, judges are reluctant to grant preferential trial setting. With the age and terminal illness situations already provided for, there are relatively few situations that justify preempting other cases waiting in line for a trial date.”

CCP §36.5 provides that a motion for trial preference may be supported by an affidavit by the party’s attorney “based upon information and belief” as to the party’s “medical diagnosis and prognosis.”

However, this statute is expressly directed to “subdivision (a) of Section 36,” the mandatory provision where a party who is 70 years of age seeks to make the requisite showing that the party’s health is “such that preference is necessary to prevent prejudicing the party’s interest in the litigation.”

“(d) In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.

(e) Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.”

With respect to subdivision (d), “clear and convincing medical documentation” is required; an attorney affidavit is insufficient. With respect to subdivision (e), there is no express requirement for such medical documentation. However, the court would be within its discretion to evaluate the evidence submitted and find that the vagueness of the current showing, along with the fact that is not corroborated by medical documentation, is not satisfactory to the court with respect to the interests of justice being served by granting the preference. The evidence is not enough to show that memory loss is sufficiently serious.

Weil and Brown note that a declaration from an attorney in support of a motion under subdivision (a), is a statutory exception to the normal rule that declarations must contain admissible evidence, not hearsay or conclusions. See Weil & Brown, California Practice Guide, Civil Procedure Before Trial, supra, at section 12:247.2. Plaintiff here does have some basis for her own reports concerning her condition and symptoms, but medical documentation would be needed for corroboration.

Defendants argue that plaintiff has not offered medical records or evidence to support her declaration claims because her medical records produced in this matter do not reference memory loss at any point in the last ten years, but on the occasions when Sally Jace’s physician conducted a objective evaluation of plaintiff, she was noted to be “AOx3,” which is an abbreviation for “alert and oriented to person, place and time,” and that plaintiff’s “judgment/insight intact.” [Glantz Decl., para. 3, Ex. 1]. Defendants submit a copy of one redacted chart note from plaintiff’s medical records and indicate they have not submitted more out of respect for plaintiff’s privacy. This chart note is from March 28, 2023, refers to “Sally Kaslov” as a 59-year-old-female, and includes the subject notations as to “Neuro” and “Psych.” [Glantz Decl., Ex. 1].

“I took Plaintiff Sally Jace’s deposition on December 12, 2023. During her deposition, based on my perception, Plaintiff seemed to be alert, and displayed little to no issues with remembering critical facts of her case, names of individuals, and where certain events took place. Plaintiff displayed some difficulties with recalling specific timing of when a particular event took place but was still able to provide me with an estimate timeline and whether facts occurred on, before, or during significant events, such as the Covid-19 Pandemic. Based on my experience, Plaintiff Sally Jace’s memory is no different than any other plaintiff or witness. Additionally, her memory appeared to be better than the other plaintiffs who have been deposed in this action.”

Again, the facts that plaintiff’s deposition has been conducted, and that plaintiff has not pointed to any point in that deposition where a significant lack of recall occurred, definitely weakens any argument that preference is necessary to preserve plaintiff’s current testimony.

Defendants also argue that they will be prejudiced if a preference order is granted, as plaintiffs’ depositions were only recently conducted, and defendants need time for further discovery, including depositions of third-party witnesses, investigation of claims made by plaintiffs in their discovery responses and depositions, expert discovery, and trial preparation. [Glantz Decl., para. 4]. It is also argued that defendants would be deprived of the opportunity to bring a motion for summary judgment, but this issue is not addressed in the declaration.

It is recognized that prejudice to defendant of an accelerated trial date is appropriately taken into account in considering discretionary relief. See Weil and Brown, Civ. Proc. Before Trial, supra, section 12:260, citing Salas, supra, at 349; see also Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 440-441.

In any case, the motion overall does not establish good cause for a special setting in the interests of justice, and the matter is handled best by maintaining the current trial date, which is fairly prompt at only eleven months away, and which allows enough time for defendants to appropriately prepare for trial, and, if they so choose, to prepare and file a timely motion for summary judgment/adjudication. The circumstances of concern to moving plaintiff can be managed by careful management of this case directed to ensuring the matter is brought to trial as scheduled.

Trial date set for December 24, 2024 will remain the trial date, with the Final Status Conference set for December 12, 2024. The parties are cautioned that under the circumstances the Court will consider this trial date firm. See CRC Rule 3.1332 (a) (“To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.”).

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