Opinion
A166498
01-11-2023
JOHNNIE L. BROWN, as Trustee, etc., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; ALI D. ABAYACHI et al., Real Parties in Interest.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG20079500
THE COURT: [*]Petitioner Johnnie L. Brown (plaintiff) seeks writ relief from respondent's order denying her motion for trial preference. We conclude plaintiff is entitled to the requested relief and grant the petition by way of this memorandum opinion because "[t]he Courts of Appeal should dispose of causes that raise no substantial issues of law or fact by memorandum or other abbreviated form of opinion." (Cal. Stds. Jud. Admin., § 8.1.)
Plaintiff is pursuing claims for elder financial abuse, cancellation of instruments, wrongful foreclosure, and quiet title against defendants/real parties in interest. Approximately two years after filing the complaint, and after that pleading and later amendments thereto provided notice that plaintiff intended to seek trial preference, plaintiff sought preference based on her age (87) and declining mental and physical health. Plaintiff's motion invoked Code of Civil Procedure section 36, subdivision (a) (hereafter section 36(a)), which 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." Four supporting declarations and other evidence accompanied plaintiff's motion.
The named defendants include Ali D. Abayachi; Kevin J. Heslin; Church Capital Corporation, Golden West Foreclosure Service, Inc.; Ramin R. Yeganeh; Coveway Properties, LLC; Michael D. Orth; Michael Nelson; New Life Property Investments, LLC; George Joseph Mahoney; Elm Home LLC; and Trilion Capital Fund, LLC.
Plaintiff's counsel represented below that the reason the most recent amended complaint did not contain trial preference allegations was because the court required plaintiff to shorten her pleading and "we felt every defendant knew about it."
Plaintiff's declaration below stated she was 87 years old, but a recently obtained birth certificate indicates plaintiff is actually 84. This discrepancy does not affect the analysis of the petition's merits.
All further statutory references are to the Code of Civil Procedure.
Various defendants and parties to related cross-complaints opposed plaintiff's motion. Some of those parties asserted plaintiff failed to establish that her health required preference. All of them opposed setting trial before September 2023 and before the pleadings were settled, the case at issue, discovery taken, and dispositive motions filed. Some defendants invoked due process principles in support of this contention.
Plaintiff's reply argued, among other things, that she met section 36(a)'s requirements; defendants did not offer any evidence to rebut her evidentiary showing; and defendants had ample opportunity to conduct discovery over 500 days for all defendants but one, who "only" had 372 days to complete discovery. (Boldface and italics omitted.)
After Judge Dennis Hayashi heard and denied plaintiff's motion, plaintiff filed the present petition.
Plaintiff appropriately seeks writ review; we reject defendants Golden West Foreclosure Service and Michael D. Orth's claims that plaintiff possesses another adequate remedy at law because she could refile her motion. We also reject their argument that plaintiff failed to establish that she will suffer irreparable harm absent writ review; her showing below was more than sufficient. (See Fox v. Superior Court (2018) 21 Cal.App.5th 529, 536 (Fox).)
Defendants contend, without citing to any supporting evidence in the record, that plaintiff's motion was denied without prejudice. Additionally, as plaintiff's reply observes, the limitations of section 1008 would apply to any renewed motion.
We review the denial of a section 36(a) preference motion under the abuse of discretion standard, except the de novo standard governs whether the trial court utilized the proper legal standards in deciding the motion. (Fox, supra, 21 Cal.App.5th at p. 533.) On this record, respondent clearly erred in denying trial preference.
Respondent found, and no party disputes, that plaintiff "has a substantial interest in the action as a whole" within the meaning of section 36(a), paragraph (1). However, respondent erred in determining that plaintiff failed to show that her "health . . . is such that a preference is necessary to prevent prejudicing [her] interest in the litigation" under section 36(a), paragraph (2).
In Fox, supra, 21 Cal.App.5th at p. 532, plaintiff's counsel's declaration discussed, among other things," 'a fogginess in thought process that impairs [Fox's] ability to focus, concentrate and effectively communicate'" and stated further chemotherapy treatments would further impair Fox's" 'ability to focus, concentrate, and effectively communicate, making her less able to participate in her trial.'" The court found this evidence showed Fox's "mental state has deteriorated to a point where she becomes confused and forgetful" and "while Ms. Fox is currently able to participate in a trial, she has good reason for concern that will not be the case for much longer as her health deteriorates," entitling her to preference. (Id. at p. 535.)
Here, plaintiff's counsel similarly averred that unlike plaintiff's condition in September 2020, when she "was able to fully and clearly communicate the nature and circumstances of her case," including "consistently describ[ing] significant events and provid[ing] dates, places and names of persons in detail," plaintiff "now has difficulty thinking, communicating, and speaking clearly" and trial preference "is necessary to ensure that she is able to meaningfully participate at trial." Counsel's observations were corroborated by plaintiff's brother and attorney-in-fact, whose declaration recounted "a noticeable and rapid decline in [plaintiff's] abilities to think and understand and remember things clearly," to the point that her "decline will make it harder for her to tell her story well to a jury." This showing satisfied the requirements of section 36(a).
Additionally, although she was not required to do so, plaintiff provided medical evidence of cognitive impairment.
Fox notes that section 36(a) does not require a doctor's declaration, but only a declaration based on information and belief under section 36.5, which" 'can consist entirely of hearsay and conclusions.'" (Fox, supra, 21 Cal.App.5th at p. 534.) This is in contrast to a preference motion under section 36, subdivision (d), a more "specific and more rigorous" provision permitting discretionary preference where a motion" 'is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.'" (Fox, supra, 21 Cal.App.5th at pp. 533, 534, italics omitted.)
A letter by a board-certified physician in geriatrics and internal medicine recounted clinical observations of plaintiff's cognitive impairment, which "affects one's ability to think, understand, remember, and make decisions"; stated it is common for patients to lack a formal diagnosis of cognitive impairment or dementia; and opined plaintiff's likely declining cognitive abilities "will negatively affect her ability to represent her interests at trial." Respondent's order denying preference inexplicably found the foregoing evidence inadequate to justify preference under section 36(a), paragraph (2).
Furthermore, evidence from a board-certified geriatric psychiatrist indicated plaintiff suffers from cognitive impairment. In October 2020, plaintiff was "not able to draw a clock with the hands showing 10 minutes past 11:00" and "had a difficult time immediately repeating back five words . . ., getting only three words on the second attempt[, and a]fter a five minute delay, she was not able to recall any of the five words." The psychiatrist interviewed plaintiff again in February 2022 and also spoke to her family for information. As of September 2022, the psychiatrist's opinion was that plaintiff's cognitive difficulties and other circumstances "are such that any significant delay in the resolution of her claims threatens to prejudice her interests by significantly diminishing her already limited ability to assist her legal counsel in presenting her case." We question respondent's reasons for dismissing that evidence. The court remarked that the psychiatrist "interestingly did not meet with Plaintiff after February 2022 even though he signed his declaration in September" 2022, but it is unclear why this would defeat the strength of the offered opinion.
Respondent also criticized the psychiatrist's September 2022 declaration for failing to contain "sufficient reasons . . . to support an inference that Plaintiff's mental capacity will precipitously decline in the following months" or state that plaintiff "is likely to be unable to provide assistance to her attorneys unless the Court sets a trial date within 120 days." This criticism appears to impose requirements not contained in section 36(a). Respondent's remark that plaintiff's "consistent expansion of the scope of the case in the two years since she filed the action" did "not contribute[] to the setting of an early trial date" is entirely irrelevant to the inquiry under section 36(a), which does not contain a diligence requirement. Also without statutory significance is respondent's remark that it "was not aware that Plaintiff intended to seek an early trial date until she filed the instant motion in September 2022." Even so, as previously observed, from the outset of the case, plaintiff's complaints included notice that plaintiff would seek preference.
"The issue under subdivision (a) is not whether an elderly litigant might die before trial or become so disabled that she might as well be absent when trial is called. Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that that party's 'health . . . is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.' (Italics added.)" (Fox, supra, 21 Cal.App.5th at p. 534.) The granting of calendar preference under section 36(a) is mandatory if the statute's requirements are met; the statute uses the term "shall." (Fox, at p. 533.) Contrary to respondent's ruling, plaintiff's showing regarding her cognitive impairment satisfied section 36(a)'s requirements, and the defendants who have appeared in this matter to oppose the granting of writ relief do not persuasively demonstrate otherwise. Therefore, we conclude respondent erred in denying trial preference.
In light of this conclusion, we need not address plaintiff's additional evidence concerning her physical conditions.
As previously noted, oppositions to plaintiff's preference motion argued trial should not be set before September 2023 since further litigation on the pleadings, discovery, and dispositive motions needs to occur, with some defendants framing their arguments as due process issues. "Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted. No weighing of interests is involved." (Fox, supra, 21 Cal.App.5th at p. 535.) While a due process limitation on the granting of trial preference under section 36 has been proposed by parties litigating such issues, our attention has not been directed to any authority squarely recognizing the validity of a due process inquiry. (See Peters v. Superior Court (1989) 212 Cal.App.3d 218, 227 [declining to address a due process issue directed to § 36, subds. (b) &(f), where real parties lacked standing due to their failure to assert they lacked adequate time to prepare for trial]; Roe v. Superior Court (1990) 224 Cal.App.3d 642, 643, fn. 2 [noting due process implications of mandatory preference under § 36 have not been decided, citing Peters, supra, 212 Cal.App.3d at p. 227]; Fox, supra, 21 Cal.App.5th at p. 535, fn. 3 [without discussing the viability of a due process limitation, finding "baseless" a claim that defendants' due process rights should be given weight, since in that case the preference motion "was made 11 months into the case, seeking a trial date within 120 days of that, [and] allowed plenty of time for discovery and trial preparation"].) In any event, we find it inappropriate to reach this question. During the pendency of this writ proceeding, respondent issued a further order clarifying it did not consider the due process issue in denying trial preference. Given that, and since it would be inappropriate for us to decide the issue in the first instance, respondent shall resolve that question on remand and thereafter set a trial date in this matter (see § 36, subd. (f)).
While we do not prejudge this issue, we observe the preference motion was made closer to two years into the case, after plaintiff provided notice in her earlier complaints that she intended to seek trial preference.
For this reason, we reject the arguments of defendants Golden West Foreclosure Service, Inc., Michael D. Orth, Coveway Properties, LLC, and Trilion Capital Fund, LLC, that we should resolve the due process issue in their favor and deny the petition on that basis.
In accordance with our notification to the parties that we might do so, we will direct issuance of a peremptory writ in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.) Plaintiff's right to relief is obvious; the erroneous denial of trial preference renders the petition unusually urgent; and no useful purpose would be served by issuance of an alternative writ, further briefing, and oral argument. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236-1237, 1240-1241; see also Brown, Winfield &Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1240-1241.)
Let a peremptory writ of mandate issue, commanding respondent to set aside and vacate its October 10, 2022 order denying plaintiff's motion for trial preference, and enter a new and different order (1) finding plaintiff satisfied the standard for preference under section 36(a), consistent with the views expressed in this opinion, (2) ruling on the due process issues posed by defendants' oppositions to plaintiff's preference motion, and (3) setting a trial date (see § 36, subd. (f)). To prevent further delays, respondent shall vacate its prior order and issue a new order within 15 days of issuance of the remittitur.
This opinion shall be final as to this court five court days after its filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).) Plaintiff is entitled to recover costs. (Cal. Rules of Court, rule 8.493(a).)
[*]Jackson, P. J.; Simons, J.; Wiseman, J. (Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution)