Judge Stephen Morgan, Case 22AVCV00127 2022-09-27 Tentative Ruling

This is an action stemming from fraud. Plaintiff Jacqueline C. Howarth (“Plaintiff”) presents that Defendants Derek B. Howarth (“Derek”[1]) and Stephanie M. Howarth (“Stephanie” and collectively “Defendants”) are her adopted son and his wife, respectively. Plaintiff alleges that Derek and her late husband, Harold Howarth, Jr. (“Harold”[2]), verbally agreed to two things: (1) Derek was to invest Harold’s life insurance proceeds that Plaintiff was to receive upon his death for Plaintiff so she could be financially secure until her death and (2) Derek was to pay Bill Proster $42,000.00 for the real property located at 11043 Ambrosio, Desert Hot Springs, California 92240 (“Ambrosio Property”), transfer title to Plaintiff, and Plaintiff would receive $1,266.00 monthly payments from Jose and Maria Trejo who the home was financed to with an option to buy. Plaintiff states that she was present when both these agreements were made. Plaintiff alleges that, despite these agreements, Derek (1) purchased an investment property located at 44342 27th Street West, Lancaster, Los Angeles County, California 93536 (“Lancaster Property”) with the life insurance proceeds; (2) purchased an investment property at 39312 Dunbar Street, Palmdale, Los Angeles, California 93551 (“Palmdale Property”) with the life insurance proceeds; (3) sold the Palmdale Property Derek recorded Intra-Family Transfers of the Palmdale Property and used the proceeds to purchase their home at 6130 Firestone Drive, Fontana California 92336 (“Fontana Property”); (4) Derek recorded Intra-Family Transfers for the Palmdale and Fontana Properties to Stephanie; (5) convinced Plaintiff that she should not be on the title for her home located at 17349 N. Flowing Spring Drive, Surprise, Arizona 85347 (“Surprise Property”); (6) refinanced the Surprise Property on unfavorable terms; (7) informed Plaintiff that she should move forward on her own on June 12, 2021, and (8) refused to return Plaintiff’s money, property, assets, securities, and anything else that was purchased with her money. During the aforementioned course of events, Plaintiff also alleges that Derek informed her that he would pay her $825.00 a month, starting February 2012, to repay Plaintiff for money Derek borrowed on a loan. Plaintiff presents that Derek states that this was an agreement in exchange for the capital he gained from the life insurance proceeds.

On February 28, 2022, Plaintiff filed her Complaint alleging three (3) causes of action for: (1) Financial Exploitation of an Elder in Violation of A.R.S. § 46-471 against Defendants; (2) Fraud and Concealment against Derek; and (3) Conversion against Defendants.

No Opposition has been filed. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . .before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) The hearing is set for September 27, 2022. As such, an Opposition was due on September 13, 2022. Should an Opposition be filed, it is now untimely.

Standard for Trial Setting Preference – Under¿Code of Civil Procedure section 36,¿“[a]¿party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared.”¿(Cal. Code of¿Civ.¿Proc.¿§36(c)(1).)¿

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:

(2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.

Priority is “mandatory and absolute in its application, further holding such construction does not impermissibly violate inherent powers of trial courts to regulate the order of their business.” (Kline v. Superior Court (1991) 227 Cal.App.3d 512, 514 [citing Rice v. Superior Court (1982) 136 Cal.App.3d 81.) “Failure to complete discovery or other pre-trial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.) “The trial court has no power to balance the differing interests of opposing litigants in applying the provision.” (Id.)

Under Cal. Code Civ. Proc. § 36(a), a plaintiff need not show that she is in imminent peril of death or incapacity. (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534.) Plaintiff need only show that her health is such that preference is necessary to prevent prejudicing her interest in this matter. (Id.)

“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.”¿(Cal. Code of¿Civ.¿Proc.¿§36(f).)¿

Application – Plaintiff moves for trial setting preference as she is 85 years old (born in 1936), has substantial interest in this case, and a trial preference is necessary to avoid the prejudicial irrevocable loss of Plaintiff’s right to a trial by jury.

Plaintiff presents that (1) she is 85 years old, older than the statutory age of 70; (2) she has a substantial interest in this case as she is the only Plaintiff party, the only one entitled to the money, suffers from stress induced mental and physical illnesses, and is entitled to a trial by jury before she dies or is further incapacitated by her age and the stress of this litigation.

Plaintiff has attached a letter from Michael Johnson, M.D. (“Dr. Johnson”), her primary care physician detailing that she is having difficulty with gait and mobility; has suffered multiple falls which have sent her to the emergency room, has suffered a stroke which has led to paresthesias, a burning or prickling sensation that is usually felt in the hands, arms, legs, or feet, but can also occur in other parts of the body related to pressure on nerves; has speech difficulty; and declining health. (Exh. B.) Plaintiff has also attached her emergency room records. (See Exh. C.)

“The purpose of [Cal. Code Civ. Proc. § 36] subdivision (a) [is] to safeguard to litigants beyond a specified age against the legislatively acknowledged risk that death or incapacity might deprive them of the opportunity to have their case effectively tried and the opportunity to recover their just measure of damages or appropriate redress.” (Rice v. Superior Court (1982) 136 Cal.App.3d 81, 88-89.)

As required by section 36, subdivision (a), Plaintiff is over the age of 70. As the individual injured and the real party in interest prosecuting this action, she has a substantial interest in this action. Moreover, her physical health necessitates a trial preference in order to maximize her full participation and attendance at trial. The trial setting provision is mandatory and the Court is bound by statute.

[1] As Defendants share the same surname, the Court addresses each individually by their first name for the purpose of clarity. No disrespect is meant.

[2] Plaintiff’s late husband, Harold Howarth, Jr., also shares the same surname as Defendants. The Court addresses Plaintiff’s late husband by his first name for the purpose of clarity. No disrespect is meant.