Betty A. DePaul v. Lawrence DePaul, 18CV-0091

Hearing: Motion for Preference

Date: March 29, 2018

Plaintiff Betty A. DePaul (“Plaintiff”) filed this action individually and as Trustee of the Richard E. DePaul and Betty A. DePaul Living Trust dated July 9, 1998 against Plaintiff’s son Lawrence DePaul (“Defendant”) on February 14, 2018. The complaint alleges five causes of action for financial elder abuse, fraudulent inducement to enter contract, false promise, money had and received, and rescission based on fraud. The action arises out of allegations that Defendant allowed a loan to be secured against Plaintiff’s primary residence for his own personal benefit without Plaintiff’s ability to consent or understand, and at a time when Plaintiff was particularly vulnerable. Plaintiff allegedly wishes to sell the property as her age and health required her to reevaluate her living conditions. Defendant allegedly refuses to pay off the loan, and Plaintiff is not able to sell the property.

Plaintiff, who is 90, moves here for trial setting preference pursuant to Code of Civil Procedure section 36. Under that section, a civil action is entitled to preference on the motion of any party to that action who has reached the age of 70 years, if the court finds both (1) that the party has a substantial interest in the action as a whole, and (2) that the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. (Code Civ. Proc., § 36(a)(1) and (2).)

Here, Plaintiff declares that she is 90 years old and has a number of health problems that will likely reduce the longevity of her life, specifically asthma and a heart condition that has caused her to be admitted to the hospital for several days, at least five times during the past year. (Declaration of Betty A. DePaul (“DePaul Decl.”), ¶ 5.) She further declares that there is a strong possibility that she will physically be unable to provide vital testimony at trial. (DePaul Decl., ¶ 6.) She declared that she is available for trial during the next 120 days, and that all parties in this action have been served with process or have appeared. (DePaul Decl., ¶¶ 7, 9.)

Defendants do not oppose the motion but submit a declaration asking that the matter be set for trial in mid to late July 2018,1 as counsel is engaged in trial April 16-18, 2018, and May 14, 25, 2018, and will likely be on vacation the week of June 4, 2018.

1 Upon the granting of a motion for preference, “the court shall set the matter for trial not more than 120 days from that date ….” (Code of Civ. Proc., § 36(f) [italics added].) The 120-deadline falls on July 27, 2018.

2

The Court finds that Plaintiff has a substantial interest in the action as a whole and that the health of the party is such that a preference is necessary to prevent prejudicing Plaintiff’s interest in the litigation. The motion for preference is granted. The Court will address the date of trial at the hearing.