Metropolitan News-Enterprise


Friday, January 13, 2023


Page 1


Court of Appeal Acts Expeditiously in Case of 87-Year-Old Woman Denied Trial Preference


By a MetNews Staff Writer


Div. Five of the First District Court of Appeal yesterday issued a peremptory writ of mandate in the first instance ordering that a trial preference be granted to an 87-year-old woman whose doctors say her mental faculties are declining, with the court acting barely over two months after a writ petition was filed and after issuing an order in an ill-starred effort to nudge the judge who denied the preference to change his mind.

In an unpublished memorandum opinion—signed by Presiding Justice Teri L. Jackson, Justice Mark B. Simons, and retired Justice Fifth District Justice Rebecca A. Wiseman, sitting on assignment—the court said:

“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.”

Quick Action

The justices declared that the opinion will become final in five days and that the Alameda Superior Court will have 15 days after issuance of the remittur to scrap its Oct. 10 order denying a trial preference to plaintiff Johnnie L. Brown, to rule on the defendants’ due-process objections, and set a trial date.

Brown, who is suing for elder financial abuse and wrongful foreclosure, as well as seeking the cancellation of instruments and to quiet title, filed the writ petition last Nov. 7. In an order issued three days later, Div. Five declared:

“It appears respondent superior court erroneously denied petitioner’s motion for trial preference under Code of Civil Procedure section 36, subdivision (a). On this record, the stated reasons for the court’s denial of petitioner’s motion do not appear to withstand scrutiny under the applicable standards.”

Second Chance

It went on to say:

“[T]o permit a more expeditious resolution of this petition, this court grants respondent superior court power and jurisdiction to issue an order (1) vacating its October 10, 2022 order, and (2) issuing a new and different order on petitioner’s motion for preference consistent with the foregoing two paragraphs of this order. Should respondent superior court take those actions, this petition will be dismissed as moot.”

However, Judge Dennis Hayashi would not budge, and the appeals court ordered issuance of a writ.

Wording of Statute

Sec. 36(a) 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.”

The opinion says that Hayashi “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).” As to Brown’s health, the opinion recites the statements by two medical specialists as to Brown’s worsening cognitive impairment and remarks:

“We question respondent’s reasons for dismissing that evidence.”

The case is Brown v. Superior Court, A166498.


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