Judge: Stephen P. Pfahler, Case: 23CHCV02374, Date: 2024-01-09 Tentative Ruling

Case Number: 23CHCV02374    Hearing Date: January 9, 2024    Dept: F49

Dept. F-49

Date: 1-9-24 a/f 3-18-24

Case #23CHCV02374

Trial Date: Not Set

PREFFERENCE

MOVING PARTY: Plaintiff, Teresa Apolinar

RESPONDING PARTY: Unopposed/Defendant, Jorge Apolinar

RELIEF REQUESTED

Motion for Trial Preference

SUMMARY OF ACTION

On August 8, 2023, Teresa Apolinar filed a complaint for Partition of Real Property against Jorge Apolinar. Jorge answered the complaint on November 1, 2023.

RULING: Denied.

Request for Judicial Notice: Granted.

Plaintiff Teresa Apolinar moves for trial preference on grounds that plaintiff is represented as either 87 or 90 years old, with an unspecified “heart problem” requiring Plaintiff avoid “stressful situations.” The court electronic filing system shows no opposition or reply at the time of the tentative ruling publication cutoff.

Code of Civil Procedure section 36 subdivision (a) states in relevant part: “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.”

The motion exclusively depends on a declaration from counsel presenting Plaintiff’s age, either age 87 or 90, and an unspecified medical condition with no admitted threat to life span. (Code Civ. Proc., § 36.5.) The motion lacks any declaration of support from any treating physician establishing any life expectancy parameters. The court accepts the showing of counsel for purposes of establishing age over 70, but finds the medical support impermissibly vague. [Declaration of Jacob Iloulian.] (Code Civ. Proc., § 36, subd. (a), (c)(1), (d).)

More importantly, Plaintiff discloses a prior case against Jorge Apolinar, 21CHCV00490, whereby judgment was entered on September 26, 2023, in Department 51, and currently on appeal. Trial preference was granted by Department 47 on January 5, 2022. [Req. Jud. Not.] A notice of related cases was also filed in regards to a probate action under 23STPB11831.

The prior case involved the subject property, 19438 Delight Street, Canyon Country. The court therefore orders the parties to file a notice of related cases in Department 51 in order to determine whether the instant case should also be transferred to Department 51, where the judicial officer can determine any necessity of trial preference. The court also defers any consideration of the notice of related cases with the probate action to the either Department 51 or the assigned Probate Court.

The motion is therefore denied without prejudice.

Plaintiff to give notice.