CMC; Demurrer; Motion to Strike
preference is necessary to prevent prejudicing M Osgood's interest in this litigation. As the Second Preference Motion presents no new facts, circumstances, or legal authorities to show why a preference is necessary as to M Osgood, the same reasoning and analysis set forth in the Preference Order apply here.
As to J Osgood, though the April 28, 2026, letter from Dr. Aijian described above concludes that there exists significant uncertainty as to whether J Osgood will survive beyond the next six months, that letter is not accompanied or supported by clear and convincing medical documentation. Furthermore, though Dr. Aijian expresses uncertainty as to whether J Osgood will survive beyond the next six months, they do not state why there exists a substantial medical doubt that J Osgood will not survive beyond that period, or why.
In addition, the conclusory assertion that J Osgood will not benefit from any recovery if he dies before the case is resolved is insufficient to show why a preference is necessary to prevent prejudicing J Osgood's interest in this litigation. For example, Plaintiffs do not dispute that J Osgood cannot testify at deposition or trial due to his dementia, and that his guardian ad litem will manage the litigation on his behalf. (Memorandum at p. 6.)
For the reasons further discussed in the Preference Order set forth above, because J Osgood is represented in this action by a guardian ad litem who is charged with protecting the rights and interests of J Osgood and who may control this litigation on J Osgood's behalf, the Second Preference Motion also fails to show why a preference is necessary to prevent prejudice to those rights or interests.
The Second Preference Motion also fails to explain why a cause of action for loss of consortium, such as the cause of action asserted by J Osgood in the complaint, does not survive the death of the person entitled to commence that action, or why the damages recoverable in such an action or proceeding by a personal representative or successor in interest are otherwise limited. (See Code Civ. Proc., Sec. 377.30 & Sec. 377.34, subd. (a).) The same or similar reasoning and analysis apply.
For all reasons discussed above including in the Preference Order, the Second Preference Motion fails to show why a preference is necessary to prevent prejudicing Plaintiffs' interests in this litigation. Therefore, the court will deny the Second Preference Motion.. The court will, however, consider the age and health of Plaintiffs in setting a trial date.
With their opposition to the Second Preference Motion, Defendants submit written objections to material appearing in the Posey declaration filed in support of that motion. The court considers only that evidence which is admissible and relevant to the issues presented. In addition, as further discussed in the Preference Order, a declaration submitted in support of a motion for preference under Code of Civil Procedure section 36, subdivision (a), "may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party." (Code Civ. Proc., Sec. 36.5; see also Fox, supra, 21 Cal.App.5th at p. 534.)
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Tentative Ruling: Shirley A Walski et al vs Covenant Living West Tentative Ruling: Shirley A Walski et al vs Covenant Living West Case Number
Case Type Civil Law & Motion Hearing Date / Time Fri, 06/26/2026 - 10:00 Nature of Proceedings CMC; Demurrer and Motion to Strike Tentative Ruling On the Court's own motion, the CMC; Demurrer and Motion to Strike on calendar for Friday, June 26, 2026 at 10 am in Dept. 4 are continued to Friday, July 31, 2026, at 10 am in Dept. 4.
more, constitute fraud or deception. TUCSRA expressly permits use of a telephone record by AT&T "either directly or indirectly through its agents ... [a]s may be necessarily incident to the rendition of the service." (A.R.S. Sec. 44-1376.02(B)(3).)
Even assuming arguendo that plaintiff's conversations with AT&T are telephone records as alleged in the complaint, the allegations fall short of establishing that defendant "knowingly procured" or conspired with another to procure a telephone record "without the authorization" of plaintiff or "by fraudulent, deceptive or false means." (A.R.S. Sec. 44-1376.01(A)(1), (3).) The complaint also does not establish that defendant received such record "knowing that the record has been obtained without the authorization of the customer to whom the record pertains or by fraudulent, deceptive or false means." (Ibid.)
TUCSRA's legislative history confirms this reading. In the context of this statute, the term "without authorization" is targeted to prevent the practice of gaining access to telephone record information "by posing as the customer, then offering the records for sale on the Internet without the customer's consent or knowledge." (RJN, Ex. 5, p.1; see RJN, Ex. 1, p.1; RJN, Ex. 2, p.1; Williams, supra, 2025 WL 1135160, at *2-3 [explaining pretexting].) This is not the type of conduct alleged in the complaint. The complaint fails to allege facts establishing this element of the TUCSRA. The court will sustain the demurer with leave to amend on this additional basis.
(7) Request for Judicial Notice Defendant requests that the court take judicial notice of the following documents; (1) A true and correct copy of the Arizona Bill Summary on House Bill 2785, dated April 24, 2006, attached hereto as Exhibit 1. (2) A true and correct copy of the Arizona Fact Sheet on House Bill 2785, dated March 27, 2006, attached hereto as Exhibit 2. (3) A true and correct copy of the Arizona Fact Sheet on House Bill 2785, dated March 12, 2007, attached hereto as Exhibit 3. (4) A true and correct copy of the Arizona House of Representatives Committee on Commerce Minutes, dated February 15, 2006, attached hereto as Exhibit 4. (5) A true and correct copy of the Arizona Bill Summary on House Bill 2785, dated February 16, 2006, attached hereto as Exhibit 5. (6) A true and correct copy of the Arizona Bill Status on House Bill 2785, dated May 8, 2006, attached hereto as Exhibit 6. (7) A true and correct copy of the First Amended Class Action Complaint filed by Plaintiff's counsel in Busby v.
Invoca, Case No. 3:24-cv-05542-JD (N.D. Cal. 2024), Dkt. 21, attached hereto as Exhibit 7.
The court will grant judicial notice of exhibits 1 through 6 since these documents were pertinent to the court's analysis. (See Evid. Code, Sec. 452, subd. (d).) The request is otherwise denied.
Tentative Ruling: Shirley A Walski et al vs Covenant Living West Tentative Ruling: Shirley A Walski et al vs Covenant Living West Case Number
Case Type Civil Law & Motion Hearing Date / Time Fri, 07/31/2026 - 10:00 Nature of Proceedings CMC; Demurrer and Motion to Strike