Judge: Robert B. Broadbelt, Case: 22STCV02611, Date: 2022-08-16 Tentative Ruling

Case Number: 22STCV02611    Hearing Date: August 16, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Plaintiff Sofia Nemzer

RESPONDING PARTIES:    Defendant Howard Management Group (joined by defendant 1544 9th Street, LLC on August 3, 2022)

Motion for Trial Preference

The court considered the moving, opposition, and reply papers filed in connection with this motion.

 Background

Plaintiff Sofia Nemzer (“Plaintiff”) filed this action against defendants 1544 9th Street, LLC, and Howard Management Group (“Defendants”) on January 21, 2022.  Plaintiff filed her operative First Amended Complaint against Defendants on March 8, 2022, alleging eight causes of action for (1) tortious breach of implied warranty of habitability; (2) negligence; (3) intentional infliction of emotional distress; (4) violation of Civil Code section 54.1; (5) violation of W.H.M.C. section 17.52.090; (6) violation of Civil Code section 1942.4; (7) violation of Business and Professions Code section 17200; and (8) constructive eviction.

Plaintiff now moves for an order granting trial preference pursuant to Code of Civil Procedure section 36, subdivision (a). 

DISCUSSION

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.  (Code Civ. Proc., § 36, subd. (a).)  “Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted.  No weighing of interests is involved.”  (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535; see also Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 692 [if the court makes these findings, trial preference is mandatory -- the court lacks discretion to deny the relief].)  Upon the granting of a motion for trial preference, “the court shall set the matter for trial not more than 120 days from that date . . . .”  (Code Civ. Proc., § 36, subd. (f).)

The court finds that Plaintiff has not met her burden to establish that her health is such that a preference is necessary to prevent prejudicing her interest in the litigation and therefore denies Plaintiff’s motion. 

It is undisputed that Plaintiff is over 70 years of age, and that Plaintiff has a substantial interest in the action as a whole.  (Code Civ. Proc., § 36, subd. (a)(1); Nemzer Decl., ¶ 1.) However, the court finds that the evidence submitted in support of Plaintiff’s motion is insufficient to establish that Plaintiff’s health conditions will prejudice her interests in this action. 

First, the declarations stating that (1) Plaintiff suffers from various physical ailments and mobility issues and (2) Plaintiff has outlived her life expectancy are insufficient to establish that Plaintiff’s mobility issues and age are such that they will prejudice her interests and her ability to litigate this action.  (Shakhnis Decl., ¶¶ 7-8; Nemzer Decl., ¶¶ 3, 6.) 

Second, the declarations explaining that Plaintiff has had difficulty remembering dates are similarly insufficient.  Alex Nemzer and Plaintiff’s counsel state that Plaintiff has previously had trouble with remembering dates.  (Shakhnis Decl., ¶ 10 [stating that Plaintiff has issues remembering when certain events took place]; Nemzer Decl., ¶ 7 [stating that Plaintiff “has a harder time with dates”].)  The court finds these declarations to be insufficient because (1) counsel’s declaration is not based on “the medical diagnosis and prognosis” of Plaintiff as it relates to her memory issues as required by section 36.5, and (2) Alex Nemzer’s declaration establishes only that Plaintiff is having difficulty remembering certain dates, and does not establish that Plaintiff is having difficulty remembering the substance of her claims, or that her memory troubles will otherwise prejudice her interests and impair her ability to litigate this action.  (Code Civ. Proc., § 36.5 [an affidavit in support of a motion for mandatory trial preference may be signed by the attorney for the party seeking preference “based upon information and belief as to the medical diagnosis and prognosis of any party”].)  

Third, although counsel contends that Plaintiff may suffer grave health consequences if she contracts COVID-19, such an argument is speculative and insufficient to support this motion because there is no evidence that Plaintiff has contracted COVID-19. 

Finally, counsel has stated that Plaintiff’s physician opined that “an elderly medical patient with the underlying conditions of [Plaintiff] is in general not expected to make a full recovery after suffering a deterioration in her mobility.”  (Shakhnis Decl., ¶ 12.)  This statement also fails to establish that Plaintiff’s mobility issues, even if they are not alleviated, will prejudice her interests in this litigation.   

Thus, although the court takes seriously and is sympathetic to the fact that Plaintiff suffers from a number of physical conditions, Plaintiff has not met her burden of showing that these health conditions are such that a preference is necessary to prevent prejudicing Plaintiff’s interests in the litigation, as required by section 36, subdivision (a).  For example, Plaintiff has not shown that her health conditions impair her ability to appear at or effectively participate in trial, or prejudice her interests in the litigation in any other way.

Based on the evidence presented, the court finds that Plaintiff is over 70 years of age and has a substantial interest in the action as a whole.  (Code Civ. Proc., § 36, subd. (a)(1).  However, for the reasons set forth above, the court finds that Plaintiff has not met her burden of establishing that her health is such that preference is necessary to prevent prejudicing Plaintiff’s interests in the litigation.  (Code Civ. Proc., § 36, subd. (a)(2).)

ORDER

The court denies plaintiff Sofia Nemzer’s motion for trial preference.

The court orders defendant Howard Management Group to give notice of this order.

IT IS SO ORDERED.

DATED:  August 16, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court