Motion for trial preference
following violations, among others: "heavy cockroach infestation, broken interior walls, broken deteriorated flooring on front porch, falling ceiling, deteriorated, overfused electrical wiring, lack of proper plumbing connection to sewage system in bathroom, sewage under bathroom floor, leaking roof, broken windows, and fire hazard." (Ibid.)
The tenant in Stoiber alleged that "she had repeatedly notified both Irene Honeychuck and Ron Perkins (an employee of Frank P. Smith Realty and Management) of defective conditions, and that no effort was made to repair the defects." (Id. at p. 913.)
This presentation was sufficient to allege that the landlord had actual and constructive knowledge of the defective conditions and failed to correct them.
Here, the Complaint alleges that from approximately 2018 through the duration of Plaintiffs' tenancy, Plaintiffs experienced mold inside the subject property. Specifically, Plaintiffs allege that "[w]ater repeatedly entered the interior walls, insulation became saturated and black mold developed in multiple areas." (Compl., P. 15.)
The Complaint alleges that instead of remediating the mold, Defendants "painted over the mold in the restroom, concealing, rather than correcting the condition" and that the "mold condition remained ongoing and unresolved throughout Plaintiffs' tenancy." (Compl., P. 16.)
The Complaint alleges that the property had a leaking roof, broken windows, broken doors, holes in the walls, defective plumbing, broken pipes, and inoperable light switches and electrical outlets. (Compl., P.P. 17-18.)
Plaintiffs allege that despite reporting these issues to Defendants more than 10 times, the conditions were not repaired. (Compl., P.P. 17-18.)
The Complaint further alleges that since 2023, Plaintiffs experienced a rat infestation inside the property and that when Plaintiffs informed Defendants about the rates, Defendants dismissed the concerns asserting that "it's not a big deal." (Compl., P. 23.)
Lastly, the Complaint alleges that in June 2025, a City of Monrovia Code Enforcement Officer inspected the property and noted various violations which were reported to the Defendants. (Compl., P. 24.)
The Court finds that, if proven true, the foregoing allegations would be sufficient to support an award of punitive damages. The Complaint adequately alleges that the Defendants had actual and constructive knowledge of the defective conditions yet failed to take reasonable steps to correct them. These allegations are materially similar to those in Stoiber, in which the Court of Appeal found comparable allegations were sufficient to support a claim for punitive damages against a plaintiff's landlords. Thus, the motion to strike is DENIED.
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RULING: Defendants Paul Deforest, Roslyn Deforest, and Paul Deforest and Rosyln Deforest as Trustees of the Deforest Family Trust dated March 21, 2022's Motion to Strike is DENIED.
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Case Number: 26NNCV03970 Hearing Date: August 14, 2026 Dept: D TENTATIVE RULING Calendar: 14 Date: August 14, 2026 Case No: 26NNCV03970 Trial Date: Not yet set Case Name: Fayad v. Sage Glendale II LLC, et al. MOTION FOR TRIAL PREFERENCE [CCP Sec. 36 subd. (a)] Moving Party: Plaintiff, Emadia Fayad Responding Party: Defendants, Sage Glendale II LLC, Agemark Management LLC, and Angela Smith RELIEF REQUESTED: Order granting trial preference pursuant to CCP section 36 subdivision (a). CAUSES OF ACTION: from Complaint 1) Elder Abuse [Pursuant to the Elder Adult and Dependent Adult Civil Protection Act - Welfare and Institutions Code Sec.Sec.15600, et seq.]
2) Negligence
REQUEST FOR JUDICIAL NOTICE The Court may take judicial notice of "[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States" and of "[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." (Evidence Code, Sec. 452, subds. (c), (h).)
The court, however, may not take judicial notice of the truth of the contents of the documents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to show their existence and what orders were made such that the truth of the facts and findings within the documents are not judicially noticeable. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.)
Pursuant to Plaintiff's request, the Court takes judicial notice of the following: (1) the United States Passport issued to Emadia Fayad; and (2) the California Driver's License issued to Emadia Fayad. (RJN Exs., 1-2.)
SUMMARY OF FACTS: The Complaint alleges that on May 30, 2024, Emadia Fayad ("Plaintiff") was admitted to Defendants' residential care facility for the elderly suffering from dementia. Plaintiff alleges that during the time she was a resident at the facility, she suffered multiple severe witnessed and unwitnessed and avoidable falls. As a result of the multiple falls, Plaintiff suffered from significant injuries, including a fractured hip which required surgical repair.
The Complaint alleges that upon Plaintiff's admission to the facility, Defendants were aware that Plaintiff suffered from dementia, was at risk of falls, and required special care and assistance including 24-hour supervision and monitoring, assistance with ambulation and transferring, and the provision of safety and assistance devices to prevent accidents. The Complaint alleges that notwithstanding this knowledge, Defendants knowingly disregarded this risk and failed to adequately care for, supervise or monitor Plaintiff.
ANALYSIS: Relief is sought under CCP section 36 subdivision (a), under which: "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."
In addition, "the court may also grant a motion for preference that 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." (CCP, Sec. 36, subd. (d).)
The motion may be supported by an affidavit by the party's attorney "based upon information and belief" as to the party's "medical diagnosis and prognosis." (CCP Sec. 36.5.)
"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." (CCP Sec. 36, subd. (f).)
With respect to the requirements for a preference order under CCP section 36, subdivision (a), the first requirement is that the moving party establish that the party is over 70 years of age. Plaintiff's son submits a declaration and a copy of Plaintiff's passport and driver's license evidencing that Plaintiff is currently 79 years old. (Fayad Decl., P.2, Ex. 1.)
With respect to the requirement that a party have a substantial interest in the action as a whole, Plaintiff is the only Plaintiff in this action, which involves personal injuries to Plaintiff herself. Hence, it is undisputed that Plaintiff has a substantial interest in the action.
With respect to whether plaintiff has established that his health is such that a preference is necessary to prevent prejudicing his interest in the litigation, the statute was amended in 1990 so that advanced age alone is not enough to give rise to preference. A party must now show that "[t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP, Sec. 36 (a)(2).)
The decision to grant or deny a preferential trial setting under CCP section 36 "rests at all times in the sound discretion of the trial court in light of the totality of the circumstances." (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 344.)
Plaintiff submits a declaration from Dr. Shahab Attarchi who attests that, "[t]o a reasonable degree of medical certainty, I declare that [Plaintiff] suffers from medical conditions such that her health has rapidly deteriorated and that there exists a substantial medical doubt that [Plaintiff] has more than six months to live." (Attarchi Decl., P. 6.)
Dr. Attarchi conducted a physical examination of Plaintiff and reviewed of her medical history. (Attarchi Decl., P.P. 6-8.) Dr. Attarchi notes that Plaintiff has "a medical history of multiple falls, femur fracture requiring surgical repair resulting from a fall, chronic kidney disease, Stage 1 left heel pressure ulcer, reddening on the sacrum, pulmonary edema of the lungs, high cholesterol, type 2 diabetes, anxiety, GERD, osteoarthritis, small lung volume, left leg edema and COPD."
Dr. Attarchi further observes that Plaintiff's conditions, as well as her advanced age, history of falling, and poor nutritional intake, place her at a high risk for injury, further debility, infection, and death. (Attarchi Decl., P. 9.)
Thus, Plaintiff has presented sufficient evidence that she is over the age of 70, has a substantial interest in this action, and that she will be prejudiced if trial preference is not granted due to her worsening health condition and dementia, which will affect her ability to prepare for trial, recall critical events, and impede her ability to testify.
In the opposition, Defendants argue that the interests of justice will not be served if the motion is granted, because Plaintiff has alternative means of participating in trial, such as having her deposition taken, and her condition limits her ability to stand for trial. (Opp. pp. 2:26-3:15.)
This argument would appear to favor granting the motion, as Plaintiff's dementia and limited ability to participate in trial support the need for an expedited trial date.
Defendants also argue that they will be prejudiced if the motion is granted because they will not have adequate time to prepare for trial and because Defendants' demurrer and motion to strike are still outstanding. (Opp., pp. 3:16-4:14.)
This argument is unavailing. "The trial court has no power to balance the differing interests of opposing litigants in applying¿[CCP¿Sec. 36]. The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations."¿ (Swaithes¿v. Superior Court¿(1989) 212 Cal.App.3d 1082, 1085-86; Vinokur¿v. Superior Court¿(1988) 198 Cal.App.3d 500, 503 ["[T]here can be no inroads into the mandate of section 36."])
If the court makes the requisite finding of fact on a motion for preference under Code of Civil Procedure section Sec.36(a), it has no discretion to deny the motion due to the use of the word "shall" in the statute. (See¿Peters v. Superior Court¿(1989) 212 Cal.App.3d 218, 224-25;¿Rice v. Superior Court¿(1982) 136 Cal.App.3d 81, 89-94.)¿¿
Thus, because the Court has made the requisite findings of fact under CCP section 36 subdivision (a), the Court has no discretion to deny the motion. The motion is GRANTED.
RULING: Plaintiff Emadia Fayad's Motion for Trial Preference is GRANTED. The Court will discuss available trial dates with the parties at the hearing.
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