Dennis Gillio and Carolyn Gillio v Nationwide Mutual Insurance Company and Douglas Byers

Case Number

25CV07167

Case Type

Hearing Date / Time

Wed, 02/18/2026 - 10:00

Nature of Proceedings

Motion re Trial Setting; Petition re Compelling Completion of Appraisal

Tentative Ruling

Plaintiffs by Steve White

Defendant Nationwide by Sonia Martin, Matthew Chipman, Phillip O’Connell

Defendant Douglas Byers; no appearance.

Emails: attorneystevewhite@gmail.com; sonia.martin@dentons.com; phillip.oconnelljr@dentons.com; matt.chipman@dentons.com; jon.braunstein@dentons.com; joshua.haevernick@dentons.com

RULING

For the reasons set out below the

 

1. The Motion for trial setting preference is DENIED.

2. The Petition to compel the completion of an appraisal process is GRANTED.

Analysis

This is a motion for trial setting preference by Plaintiffs Gillio, and a petition to compel the completion of an appraisal process by Defendant Nationwide Mutual Insurance Company. Each of those motions was calendared for a hearing on March 11.  On February 5, the Court granted Nationwide’s ex parte application and ordered that the hearing on that petition and Plaintiffs’ motion for trial preference be set for February 18, with the parties’ oppositions and replies due on, respectively, February 9 and before noon on February 11.

Plaintiffs Motion for Trial Setting Preference

The motion was filed 1/2/26; summarized: Plaintiffs moved the Court for an order granting a trial preference pursuant to the provisions of CCP §36a and 36e; the motion is based on the provisions of Code of Civil Procedure §36, the ages of Plaintiffs, who are both over 70 years of age, their health conditions as set forth in the Declaration of Steve White and the Memorandum of Points and Authorities,

Declaration of Steve White; summarized: Dennis Gillio continues to combat a cancer in his throat. Surgery was "successful," but he continues to undergo treatment, which has naturally left him exhausted and weakened. Mr. Gillio was born in December 1949. Ms. Gillio was born in April 1952; the Court should grant this motion pursuant to the provisions of section 36(e) based on their ages alone. Although Defendant Nationwide has acknowledged service, it contends that a responsive pleading is not due until approximately January 29, 2026. This motion is filed and served on counsel for Nationwide at this time. Despite the efforts of a professional process server, we have been unable to locate Mr. Byers to serve him. Efforts continue to locate Defendant Byers and get him served.

Memorandum of Points and Authorities; summarized: Plaintiffs meet the requirements of CCP §36a: Dennis Gillio is over the age of 75, and Carolyn Gillio is over 70 years of age. As the Plaintiffs in this action, they "have a substantial interest in the action as a whole" (§36a(1 ), they are the owners of the property in question and insured by Defendant Nationwide. The provisions of CCP §36 are "mandatory and absolute" requiring a trial date within 120 days. Swaithes v. Superior Court, (1989) 212 Cal.App.3d 1082. This litigation is a claim for additional payment of benefits after a water loss event at the home of Dennis & Carolyn Gillio. Plaintiffs contend that Nationwide, their homeowner’s insurance carrier, did not make a sufficient payment after this water intrusion loss. Because the parties could not agree on the full amount due, the loss was submitted to an Appraisal Panel. Unfortunately, as alleged in the Fourth Cause of Action, their appraiser, Mr. Byers, abandoned the project (he has apparently disappeared) and Nationwide later decided not to approve a second replacement appraiser. Plaintiffs Dennis and Carolyn Gillio therefore ask that the Court exercise a preference in setting this matter for trial within 120 days.

Nationwide’s Opposition to Motion for Trial Preference

Filed 2/9/26; summarized: the motion is improper; there is another co-Defendant in the lawsuit, Douglas Byers, who Plaintiffs have not served. Plaintiffs offer no competent evidence that their health is such that an expedited trial is necessary other than the declaration of Stephen White who has not reviewed Plaintiffs’ medical records, spoken with their doctors or discussed their condition with them. There is no admissible evidence of Plaintiffs’ age. The interest of justice demand denial. The delays leading up to this lawsuit stem from Plaintiffs’ own actions and trample Nationwide’s due process rights. Nationwide’s Motion to Compel should be granted which moots Plaintiffs’ Motion and supports dismissal or stay of litigation. 

Supported by the declaration of Joshua Haevernick, Darrell Bowles, Philip O’Connell Jr.

Plaintiffs Reply in Support of Motion for Trial Preference

Filed 2/10/26; summarized; Plaintiffs ask the Court to see through the obvious attempt by Nationwide to simply delay and obstruct this litigation. Specifically, the attorneys for Nationwide were in possession of this lawsuit on or before December 9, 2025, and insisted that they would wait the full 20 days to sign a "notice and acknowledgment of receipt" - which they did, on December 29, 2025. Plaintiffs’ motion for preference was served electronically on January 2, 2026. The correspondence from Nationwide [Defendant exhibit 30] is an improper rejection of Mr. Tyler as Appraiser for the policy holders, Dennis and Carolyn Gillio. That letter fails to make even a suggestion that Mr. Tyler is not fully qualified to serve as appraiser. In fact, Mr. Tyler is a highly qualified appraiser. Apparently, Nationwide dislikes him because he does a fine job for their policyholders. There is no reason to stay or dismiss this litigation while the appraisal process goes on. Plaintiffs have alleged areas of damage which are not subject to the appraisal process, including economic loss, general and consequential damages, quiet enjoyment, direct, incidental, and consequential financial damages.

California cases specifically hold that it is not required to stay or dismiss this action while an appraisal takes place concerning the structural damage to the insured premises. Doan v State Farm General Insurance (2011) 195 Cal.App.4th 1082, 1098. The Declaration of Steve White in support of this motion is adequate to support a trial preference pursuant to the provisions of CCP 36.5. No consultation with a health care professional is required. Unfortunately, it is common knowledge that cancer in the throat is often fatal. Paragraph 2 of the Declaration of Steve White does not simply allege that Mr. Gillio is "tired", it says he "continues to combat a cancer in his throat". The Court has discretion to grant this motion pursuant to the provisions of Code of Civil Procedure 36e - "(e) 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. "

Plaintiffs motion for preference should be granted. However, Plaintiffs have no objection to participating in the appraisal process while the litigation process goes forward. Plaintiffs ask that the Court set a hearing, on short notice, to determine whether Mr. Taylor is a qualified appraiser.

Plaintiffs ask that this litigation not be dismissed, but if it seems appropriate to the Court, that it simply be stayed for a brief period, perhaps no more than 90 days.

Plaintiffs ask that the Court take notice of the findings of Missouri Senator Josh Hawley, that delaying tactics by insurance companies constitute a fraud on their policy holders, as the article explains.

Petition to Compel the Completion of an Appraisal Process

Filed 1/28/26; summarized: seeks to compel Plaintiffs to complete the appraisal process that they demanded per the terms of their insurance policy and California law and dismissing Plaintiffs’ lawsuit – alternatively - the Court should stay Plaintiffs’ suit pending completion of the appraisal. The Petition is brought on the grounds that disputes concerning the amount of loss to the property must be resolved through pending nonjudicial appraisal upon either party’s demand per Plaintiffs’ insurance policy. Plaintiffs demanded the appraisal in August 2023. The process stalled for more than 2 years amid Plaintiffs’ multiple appraiser changes and related delays. Plaintiffs filed this lawsuit 3 days after Nationwide expressed concerns regarding yet another appraiser change; Plaintiffs second in 2 years, rather than completing the appraisal they demanded. Plaintiffs are amenable in principle to resuming the appraisal process with their appraiser of choice.

Plaintiffs are barred from bringing any lawsuit against Nationwide unless they comply with all the conditions of their policy. Compliance with appraisal provision is one such condition.

Supported by Points and Authorities.

Supported by the Declaration of Darrell Bowles.

Supported by the Declaration Philip O’Connell Jr.

Nationwide’s Reply in Support of its Petition to Compel

Filed 2/11/26; summarized: Plaintiffs do not oppose appraisal nor could they. They demanded appraisal. Plaintiffs chose not to file an opposition brief. They rely on a declaration of their attorney, Steven White. The argument that Nationwide has waived forfeited or relinquished the right to appraisal has no merit. The Court should grant Nationwide’s petition, compel appraisal and dismiss or stay this action pending completion of an appraisal.

The Court’s Conclusions

This case was filed 11/17/25; 4 counts; breach of contract, breach of implied covenant of good faith, elder abuse, and fraud. During August 2020 a water intrusion event caused damage to the interior of the Sea Ranch Drive property. Plaintiffs contend they hired Defendant Byers to provide an appraisal, but he provided no work product, and after the August 2020 water intrusion event Nationwide Mutual Insurance breached its obligations under the insurance policy and Plaintiffs suffered damages.

Plaintiffs request for trial preference lacks merit and the Court will deny that request. The request that the Court take notice of the findings of Missouri Senator Josh Hawley is denied. The Court is mindful that the event behind this case occurred in 2020; litigation could have and should have been commenced long ago; the request for trial preference comes vastly too late in the proceedings. Additionally, Nationwide’s arguments are persuasive.

Nationwide’s request for a dismissal or stay is denied.  Those arguments have no merit either. Getting an appraisal done is not complicated while any delay in getting the appraiser appointed, and the appraisal completed, is critical. The case is not entitled to trial preference a trial date will not be delayed because the appraisal process is kicked down the alley. The appraisal process is required. The Court intends to get it done even if it requires micromanaging the case. Two weeks before the CMC of 3/18/26 both parties will submit the name of the appraiser that they believe the Court should appoint with a promise from that appraiser when the appraisal will be completed. Either side may file objections to the other sides appraiser no later than one week before the CMC. Be sure those objections are complete with reasons why the Court should not appoint the other sides requested appraiser. This is not complicated litigation. Failure to follow this order will likely be considered a waiver or judicial estoppel.

The issue of Byers being folded into the process must be addressed. It appears from the file that Plaintiffs say he was served on 12/11/25 [by substitute service] and a response is long past due. Plaintiffs are ordered to take his default immediately upon receiving this ruling and before the CMC.

The Court did not see a responsive pleading to the Gillio complaint filed by Nationwide; unless already filed that response shall be filed prior to the CMC.

At the CMC on 3/18/26 the Court will set trial dates. Please be prepared.