Motion for Preference
(49) Tentative Ruling
Re: 4791 Date Avenue LLC v. Ohman et al. Superior Court Case No. 25CECG04144
Hearing Date: May 27, 2026 (Dept. 503)
Motion: by Defendant Charles Breyer for Preference
Tentative Ruling:
To deny, without prejudice. (Code Civ. Proc. § 36, subd. (e).)
Explanation:
Defendant Charles Breyer (“Breyer”) has filed a motion for preference under Code of Civil Procedure section 36, subdivision (e). Defendant Clifton Ohman, as Trustee under the Will of Mildred Packer, deceased, and as Successor Trusteee under the Will of Charles Packer, deceased, (“Ohman”) has filed an opposition. Plaintiff 4791 Date Avenue LLC (“Plaintiff”) has filed no response to the motion.
Code of Civil Procedure section 36, subdivision (e) states, “Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.” The Supreme Court has held under Code of Civil Procedure section 36, subdivision (e), (formerly subdivision (d)) that “the decision to grant or deny a preferential trial setting 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.)
Breyer is currently 84 years old. (Breyer Decl., ¶ 8.) The average life expectancy of males in the United States is approximately 75 to 76.5 years. (Morris Decl., ¶ 7.) Breyer, according to his physician who conducted a comprehensive physical examination on March 26, 2026, is “in good health” and “there are presently no health concerns relating to Mr. Breyer.” (Id., ¶¶ 4-5.) The Regional Water Quality Control Board (“RWQCB”) have ongoing issues with the property involved in the case. (Ohman Decl., ¶¶ 4-6.) The ongoing issues with the RWQCB affect the value of the property involved in this case. (Id., ¶ 8.) Plaintiff contends and Breyer admits “The Property consists of certain real property together with entitlements. The Property cannot be physically divided without diminishing its value or causing undue prejudice to the parties.” (Complaint, ¶ 9; Breyer Answer, ¶ 9.)
In examining the totality of the circumstances, the facts weigh against granting preference. The RWQCB issues are an ongoing issue that could potentially be resolved or fully investigated before the already planned trial date. Breyer, in his reply, contends that only two parcels are affected by the ongoing RWQCB issue. However, Breyer has already admitted that the property cannot be divided without diminishing its value causing undue prejudice to the parties. The RWQCB issues would affect the overall sell value of the land. This weighs against granting preference. The court also considers the court’s 5
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already packed schedule and the rights of other litigants as factors against granting preference.
The main factor Breyer raises in favor of granting preference is that Breyer is 84 years old. Breyer has lived longer than the average life expectancy of a male in the United States. However, Breyer is both “in good health” and Breyer currently has “no health concerns” other than his age. Breyer also references his desire to complete an estate plan. The desire arises from Breyer’s age and the implication that Breyer will pass before he can complete his plan. Accordingly, the court considers the estate plan as part of the age argument and not a separate argument in itself.
Age by itself is not enough for the court to grant preference, especially with additional factors weighing against granting preference. If the circumstances of Breyer’s health changes for the worse, then the court is willing to reconsider this decision. Accordingly, Breyer’s motion for preference is denied, without prejudice.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: JS on 5/26/2026. (Judge’s initials) (Date)
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