Judge: Theodore R. Howard, Case: 21-1186508, Date: 2022-09-22 Tentative Ruling

Plaintiffs’ motion for preferential trial setting is GRANTED pursuant to CCP §36(e).

Preliminary Matter

All objections by defendant Spinnaker Run Community Association (“Association.”) to the declaration of Thomas Kramer (“T. Kramer”) are overruled except to the words: “She also has a heart condition that requires her to avoid stress…” to which the objections are sustained.

Merits

While plaintiff Rosemary Kramer (“R. Kramer”) has failed to meet her burden for preference under CCP §36(a), by failing to establish that her health is such that a preference is necessary to prevent prejudicing her interest in the litigation (Id. at subd. (a)(2), the motion is GRANTED under §36(e).

The court finds that the supporting declarations of R. Kramer, T. Kramer and Darryl Paul (“Paul”) have made a sufficient showing to the court’s satisfaction that the interests of justice will be served by granting this preference, including that the complaint was promptly served (Paul Decl. ¶6), that R. Kramer, the owner of the subject property, is 71 years of age with numerous health challenges (R. Kramer Decl. ¶2), that since June 2020 she has not received any rent for the property which has caused an extreme financial predicament that has taken a toll on her mental health (Id. ¶¶2, 6-8), that she is unable to refinance or sell the property because of the moisture and mold problem (Id. ¶6,9-10) and that plaintiff Jailyn Kramer (“J. Kramer”) and T. Kramer have been displaced from the property with no place to live, having to sleep in their car and live with friends for some time, since July 2021. (T. Kramer Decl. ¶13)

Association disputes that plaintiffs are displaced from the property due to its condition but provides no evidence to counter plaintiffs’ declarations.

Association argues that it will be prejudiced because no depositions have gone forward and a preferential trial date would cut short its ability to conduct discovery and file a summary judgment motion, but it has had over a year and a quarter to pursue discovery and summary judgment. Association provides no explanation for the failure to do so. Balancing the competing interests, the court finds that the interests of justice will be served by setting this matter for a preferential trial date.

The motion is therefore GRANTED.

The current trial date of 8/14/2023 is vacated.  Trial will be scheduled after discussions with counsel at the hearing.

Moving party to give Notice of Ruling.