Judge: Bruce G. Iwasaki, Case: 24STCV21291, Date: 2025-06-04 Tentative Ruling

Case Number: 24STCV21291    Hearing Date: June 4, 2025    Dept: 14

SUPERIOR COURT OF THE STATE OF CALIFORNIA¿¿  

FOR THE COUNTY OF LOS ANGELES  

DEPARTMENT 14¿ 

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I.                Background

On August 20, 2024, Plaintiffs Terry and Ann Luhr (“Plaintiffs”) filed their complaint for personal injury alleging that Mr. Luhr developed mesothelioma from exposure to asbestos and asbestos-containing products through his work as a drywaller and auto mechanic from the 1960s to the 1980s.

On May 8, 2025, Plaintiffs filed a motion for trial setting preference under Code of Civil Procedure section 36, subdivision (a). On May 21, 2025, Defendants Genuine Parts Company and Amcord, Inc. filed conditional non-opposition to Plaintiffs motion. The same day, Defendants the Dunn Edwards Corporation, the Sherwin Williams Company, Pneumo Abex LLC, and Dixieline Lumber Company filed opposition. Defendants Swinerton Builders and American Biltrite Inc. joined in the other Defendants’ opposition. Of these opposing Defendants, only Defendant The Sherwin Williams Company substantively opposes Plaintiffs’ motion under the 36(a) standard arguing Plaintiffs fail to present sufficient evidence that Mr. Luhr’s health is such that preference is necessary to prevent prejudicing Plaintiffs’ interest in the litigation. The remaining opposing Defendants primarily argue that the court has inherent power under the JCCP to deny Plaintiffs’ motion. On May 28, 2025, Plaintiffs filed their reply. On June 4, 2025, the court held a hearing.

The court grants Plaintiffs’ motion for trial preference.

II.               Discussion

A.    Legal Standard

A party who is over 70 years old may petition the court for a preference for trial date, which the court shall grant if it makes both of the following findings: (1) the party has a substantial interest in the action as a whole; and (2) 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, subd. (a).) An affidavit submitted in support of a motion for preference under this subdivision may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. (Id., § 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.”  (Code. Civ. Pro., § 36, subd. (f).)  “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.” (Ibid.)

B.    Analysis  

Plaintiff Terry Luhr is 75 years old and was diagnosed with malignant lung cancer in June 2023. (Pearce Decl. ¶ 4.) Mr. Timothy Pearce, Plaintiffs’ attorney, opines: “Based upon information and belief, and my decades of experience in representing cancer victims, Mr. Luhr’s health will continue to decline as his cancer progresses. He will inevitably become increasingly weak and his severe coughing bouts will increase and worsen, along with the above-described physical and mental effects that stem therefrom. [¶] Based upon my experience and my conversations with Mr. Luhr, it is my opinion that Mr. Luhr’s declining health and age may negatively affect and/or greatly impair his ability to participate in the litigation of his personal injury action.” (Pearce Decl. ¶¶ 8-9.) Mr. Pearce bases his opinion on approximately 50 hours of conversations and interactions with Mr. Luhr since August of 2024, and a recent change to Mr. Luhr’s diagnosis. (Pearce Decl. ¶ 7 [“Since meeting Mr. Luhr nine months ago, I have seen a marked decline in his ability to concentrate, maintain conversation, and recall events.”].) Specifically, while Mr. Luhr was originally diagnosed with “Stage 1a” cancer in June 2023, as of February 18, 2025, a PET/CT scan revealed that his cancer had metastasized to his bones and his liver such that his cancer is now considered stage IV. (Pearce Decl. ¶ 4; Ex. 1 at p. 2 [“Reviewed recent PET/CT. He has metastatic disease to the bones and the liver. This was confirmed on biopsy of liver mass although unclear if this is now a small cell lung cancer. Finally, Mr. Pearce describes Mr. Luhr’s current symptoms as follows: “Mr. Luhr can only speak for about an hour and a half before it becomes too exhausting for him and he cannot continue. Since initially meeting Mr. Luhr about nine (9) months ago, I have witnessed an increase in the frequency and intensity of his coughing fits. I observed his coughing and exhaustion cause him great physical and mental strain as it impairs Mr. Luhr’s ability to focus, concentrate, and communicate, making him less likely to be able to effectively participate in anything in his life in a meaningful way, specifically and inherently including in the trial of his case, the more time passes. Mr. Luhr has expressed that he is increasingly fatigued and experiencing some depression. He has further expressed deep concern for his wife’s well-being after his death and wants to see justice, i.e., his trial, in his lifetime.” (Pearce Decl. ¶ 6.)

 Plaintiffs also attach to Mr. Pearce’s declaration excerpts of of Mr. Luhr’s deposition taken on March 26, 2025 in which he describes his current health. (Pearce Decl. Ex. 2.) In pertinent part Mr. Luhr states: “My current condition is that, after undergoing radiation to treat the first round of cancer, it has returned. It's metastasized in the liver and some in the bone, and I'm currently undergoing chemo and immunotherapy for that. (Id. at 9:18-22.) He further describes his current understanding of his prognosis: “my doctor has said -- he said, let's go through -- at the beginning of May, we'll do another CT scan on you and see if the cancer has shrunk, or see if we're making any progress and we'll reevaluate from there.” (Id. at 92:21-24.)

The opposing Defendants do not dispute that Mr. Johnson is above the statutory age threshold or that Plaintiffs have a substantial interest in the litigation. Instead, Sherwin-Williams argues that Plaintiffs fail to present sufficient evidence to show that Mr. Luhr’s health is such that preference is necessary to prevent prejudicing Plaintiffs’ interest in the litigation. Sherwin-Williams argues: “Nothing in Plaintiffs’ Motion or the accompanying declaration of Plaintiffs’ counsel, shows that Mr. Luhr’s health has changed or declined since the filing of Plaintiffs’ Complaint (or even his initial diagnosis in June of 2023). Plaintiffs’ lawyer’s attestations do not convincingly demonstrate that Mr. Luhr’s health would decline so suddenly and substantially that he could not participate in litigation based on his current diagnoses.” (Sherwin-Williams Opposition at p. 4.) Sherwin-Williams further argues: “Mr. Pearce’s declaration and the non-expert opinions contained therein lacks foundation and at times, are plainly inaccurate. Even if accurate, it does not provide this Court with any information regarding Mr. Luhr’s current health condition or life prognosis. Mr. Luhr even testified that he was not told about a prognosis. Instead, his doctors have a ‘wait and see’ approach to determine his next course of treatment only after his next CT scan in May. This means that Mr. Luhr’s condition could actually improve. Regardless, nowhere in the Motion states Mr. Luhr’s illness is incurable or terminal and Plaintiffs’ Motion simply does not provide this Court with the information necessary to conclude that Mr. Luhr’s current medical status rises to the level of the Code Civ. Proc. section § 36(a) requirements. As the trained medical professionals recommend, the Court should also take a ‘wait and see’ approach, see what the results of the May CT scan reflect, and hold on ruling on the motion for preference until that time.” (Id. at p. 6.) Sherwin-Williams also directs the court’s attention to the fact Mr. Luhr was a smoker from 1970 to 2023. (Id. at p. 2 [“Take note that the medical records provided by Plaintiffs in support of their Motion and responses to LAOSD standard interrogatories confirm Mr. Luhr’s 50+ year smoking history. Mr. Luhr smoked from 1970, up until 2023 (ie the year of his lung cancer diagnosis), at a pack and a half of cigarettes per day.”].)

In reply, Plaintiffs argue they present sufficient evidence to satisfy their burden. Plaintiffs argue: “No opposing Defendant offers any evidence in support of their position that Plaintiff should not be granted a trial in less than 120 days. The fact remains that Mr. Luhr is now almost 76 years old and rapidly dying of malignant metastatic lung cancer that has aggressively spread to his liver and bones in a matter of just a few months. Mr. Luhr has increased coughing fits which causes difficulty breathing. He suffers increasing fatigue, is increasingly drained both physically and mentally, rendering him focus-challenged. He is less and less able to participate in activities he enjoys and is experiencing depression. His current treatment leaves him in extreme pain and with difficulty sleeping. His health will continue to decline, and so too will his mental capacity and thus ability to recall and engage in his trial. Unfortunately for Mr. Luhr, these facts have not and will not change.” (Reply at p. 3.) Plaintiffs also argue that Mr. Luhr’s history of smoking is irrelevant to this motion. (Id. at pp. 2-3 [“defendant presents a dishonest picture for this Court by ignoring the evidence before it and attempting to imply that Mr. Luhr’s smoking history has some negative bearing on his ability to obtain a preferential trial date – as if some unidentified law prevents a former smoker, who is actively dying, from bringing a motion under CCP 36. It is offensive.”].)

The evidence before the court is sufficient to establish that Plaintiffs are entitled to a trial preference under Code of Civil Procedure section 36 subdivision (a). There is no dispute that Mr. Luhr’s age is above the threshold required under the statute and that he has a substantial interest in the litigation. There is also sufficient evidence to show Mr. Johnson’s health is such that preference is necessary to prevent prejudicing Plaintiffs’ interest in the litigation. There is substantial evidence from the declaration of Mr. Pearce and the attached medical records that Mr. Luhr recently received a diagnosis which will greatly impact his health and prognosis. It is undisputed that Mr. Luhr has stage IV metastatic cancer, and that cancer has spread to his liver and his bones. (Pearce Decl. Ex. 1 at p. 2.) Mr. Pearce and Mr. Luhr both describe changes to his health since he was first diagnosed with cancer, and how those symptoms have changed since he began more vigorous treatment to address this more aggressive form of cancer. (See Pearce Decl. ¶ 6, Ex. 2, Luhr depo, at 89:22-24 [“Well, at first it was the radiation treatment, which I managed to get through fairly well, and now this chemo is kind of kicking my butt.”].) Defendant’s arguments that Mr. Luhr’s medical records and deposition testimony are inconsistent with My. Pearce’s May 7, 2025 declaration are misplaced. Mr. Pearce’s declaration is the most up to date evidence submitted in this case. It is entirely consistent with the progression of illness that Mr. Luhr would not report as severe symptoms to his doctor in February or during a deposition in March as he is experiencing in May. Defendant does not present any contrary expert testimony to interpret Mr. Luhr’s medical records or deposition testimony and instead relies exclusively on the arguments of counsel. Mr. Luhr’s course of illness establishes his health is likely to prejudice Plaintiffs’ interest in the future if trial preference is not granted. Therefore, the court finds Plaintiffs satisfy their burden.  

III.           Conclusion

Plaintiffs’ motion for trial setting preference is granted. The court orders the parties to meet and confer regarding the appropriate conditions for a trial setting order. The court sets a status conference regarding the trial setting order for June 25, 2025 at 9 A.M. The court sets a final status conference for September 15, 2025 at 9 A.M. The court sets trial for Monday September 29, 2025 at 9 A.M [117 Days].