Judge: Theresa M. Traber, Case: 22STCV04961, Date: 2023-10-18 Tentative Ruling

Case Number: 22STCV04961    Hearing Date: January 18, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     January 18, 2024                   TRIAL DATE: NOT SET

CASE:                         Rodrigo Del Villar v. Luis Daniel Chavez, et al.

CASE NO.:                 22STCV04961           

MOTION FOR TRIAL PREFERENCE

MOVING PARTY:               Plaintiff Rodrigo Del Villar

RESPONDING PARTY(S): Defendant Luis Daniel Chavez

CASE HISTORY:

·         02/09/22: Complaint filed.

·         11/16/23: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for breach of contract, fraud, and elder abuse. Plaintiff alleges that Defendants failed to repay Plaintiff pursuant to the terms of a loan agreement.

Plaintiff moves to specially set this action for trial pursuant to Code of Civil Procedure section 36(a).

TENTATIVE RULING:

Plaintiff’s Motion for Trial Preference is GRANTED. Trial in this matter is set for Tuesday, May 14, 2024 at 10:00 AM pursuant to Code of Civil Procedure section 36(a). The Court sets a Final Status Conference for 9:00 AM on May 7, 2024.

DISCUSSION:

Plaintiff moves to specially set this action for trial pursuant to Code of Civil Procedure section 36(a).

            Code of Civil Procedure section 36(a) specifically provides:

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.

(Code Civ. Proc. § 36(a) (bold emphasis and underlining added).) If granted, the Court “shall set the matter for trial not more than 120 days from that date.” (Code Civ. Proc. § 36(f).) An application under this section may be supported by an affidavit “signed by the attorney for the party seeking preference” and may be “based upon information and belief as to the medical diagnosis and prognosis of any party.” (Code Civ. Proc. § 36.5.) Such an affidavit is not admissible for any purpose other than an application under section 36(a). (Id.) The motion must be accompanied by a declaration from the moving party stating that all essential parties have been served with process or have appeared in the action. (Code Civ. Proc. § 36(c).)

            As an initial matter, Plaintiff has not included a declaration with the motion stating that all essential parties have been served with process or have appeared in the action, as required by subdivision (c) of section 36. However, the operative pleading describes a series of allegedly wrongful acts perpetrated by Defendant Luis Daniel Chavez alone. (See FAC ¶¶ 10-16.) The Court, taking judicial notice of its own case file, observes that Defendant Chavez has made several filings in this action, including a demurrer to the original Complaint, and has opposed this motion, thus making general appearances in the case. Plaintiff’s failure to include the declaration required by subdivision (c) is therefore harmless error.

            Turning to the merits, there is no dispute that Plaintiff Rodrigo Del Villar, as the elderly plaintiff, has a substantial interest in this breach of contract and elder abuse action. Thus, the only question is whether his health is such that preference is necessary.

            Plaintiff declares under penalty of perjury that he has received six surgeries on his lumbar spine since January 2023. (Declaration of Rodrigo Del Villar ISO Mot. ¶ 2.) As of January 2023, Plaintiff cannot walk without the assistance of a walker, suffers constant pain and numbness in his lower extremities when standing or sitting and cannot stand for more than two minutes at a time or walk for more than five minutes at a time. (Id. ¶¶ 2-3.) Plaintiff also suffers from severe abdominal pain, progressing loss of vision, and kidney dysfunction. (Id. ¶¶ 5-7.) Plaintiff has attached a translated note from a physician based in Guadalajara, Mexico attesting to his condition. (See Del Villar Decl. Exh. 1.)

            Defendant argues that the included physician’s note is not competent evidence of Plaintiff’s medical condition because it is hearsay and is not made under oath. This contention is irrelevant because the note merely sets forth the same information stated in Plaintiff’s own declaration, which is manifestly not hearsay and is stated under oath. More critically, Defendant also contends that Plaintiff has not established that his medical condition necessitates granting preference to avoid prejudicing his interest in the litigation. The Court disagrees. Notwithstanding the physician’s note, Plaintiff has testified to his progressive loss of vision, which, on its face, threatens to hinder his ability to participate in these proceedings and therefore threatens prejudice to his interest in this action.” (See Fox v. Superior Court of the City of San Francisco (2018) 21 Cal.App.5th 529, 535.) The Court therefore finds that Plaintiff has demonstrated that his health is such that preference is necessary to avoid prejudice to his interest in this litigation.

CONCLUSION:

            Accordingly, Plaintiff’s Motion for Trial Preference is GRANTED. Trial in this matter is set for Tuesday, May 14, 2024 at 10:00 AM pursuant to Code of Civil Procedure section 36(a). The Court sets a Final Status Conference for 9:00 AM on May 7, 2024.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: January 18, 2024                                 ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.