Judge: Stephen P. Pfahler, Case: 23CHCV02943, Date: 2024-01-02 Tentative Ruling

Case Number: 23CHCV02943    Hearing Date: January 2, 2024    Dept: F49

Dept. F-49

Date: 1-2-24 (specially set via 11-16-23 ex parte order)

Case #23CHCV02943

Trial Date: Not Set

PREFFERENCE

MOVING PARTY: Plaintiff, Bertha Lopez

RESPONDING PARTY: Unopposed/Defendants, Maricela Lopez

RELIEF REQUESTED

Motion for Trial Preference

SUMMARY OF ACTION

On May 27, 1993, plaintiff Bertha Lopez acquired certain real property identified as the La Rue Street home. On November 18, Plaintiff alleges defendant Maricela Lopez “presented” a Quitclaim Deed for Plaintiff to execute without explaining the meaning of the document. Plaintiff was unaware that the ownership of the property was now vested with Defendant.

On October 2, 2023, Plaintiff filed a complaint for Financial Elder Abuse, Fraudulent Concealment, Cancellation of Instrument, Physical Elder Abuse, Elder Abuse, and Quiet Title. Maricela Lopez answered the complaint on November 15, 2023.

In a separate action, Maricela Lopez initiated an unlawful detainer action on September 14, 2023. On November 15, 2023, Maricela Lopez dismissed Bertha Lopez from the unlawful detainer action. On December 4, 2023, the parties entered into a stipulated judgment for unlawful detainer. The court entered judgment against Bertha Anjela Ascencio and Javier Ascencio for 14018 La Rue St., San Fernando in favor of Maricela Lopez. A writ of possession was issued on December 5, 2023, with any lockout stayed until January 5, 2024.

RULING: Granted.

Plaintiff Bertha Lopez moves for trial preference on grounds that plaintiff is 88 years old, with early onset Alzheimer’s disease. Plaintiff requires a full time caretaker. The court electronic filing system shows no opposition from appearing defendant Maricela Lopez, or any reply prior to 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 and medical condition. (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 and medical condition impacting the trial, due to early onset Alzheimer’s. [Declaration of William Koehler.] (Code Civ. Proc., § 36, subd. (a), (c)(1) (e).)

The unopposed motion is granted. Because the answer was filed before the concurrent Case Management Conference, the court lacked prior opportunity to set a trial date. “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.” (Code Civ. Proc., § 36, subd. (f).)

A 120 day setting window from the hearing date is Tuesday May 2, 2024. Given the court sets its trials for Mondays, the trial date is therefore set for a starting date no later than May 1, 2024, with the reservation of a 15 day continuance, if necessary.

The court notes Defendants’ right to a motion for summary judgment, if sought, but cannot shorten the 75-day filing deadline. (See Polibrid Coatings, Inc. v. Superior Court (2003) 112 Cal.App.4th 920, 923; Mediterranean Const. Co. v. State Farm Fire & Cas. Co. (1998) 66 Cal.App.4th 257, 262.)

The court notes that the motion is granted only as to the subject parties and in no way considers the unlawful detainer judgment granted against third parties or defendant to the subject action.

The court orders the parties to cooperate in the expedited setting of the depositions of witnesses, experts and parties. Depositions can occur via video or telephonic means, due to Covid or other health concerns and/or in the interests of efficiently expediting discovery should the individual plaintiff or witness(es) require accommodation, as well. The court also advises the parties that any extensive discovery disputes may be referred to a referee via expedited schedule.

Plaintiff to give notice.