Judge: Laura A. Seigle, Case: 21STCV11834, Date: 2022-08-17 Tentative Ruling

Case Number: 21STCV11834    Hearing Date: August 17, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On March 26, 2021, Floyd Alexander and Patricia Alexander filed a complaint alleging personal injury to Floyd Alexander due to asbestos exposure.  On January 4, 2022, after Floyd Alexander’s death, Plaintiff Patricia Alexander filed an amended complaint as successor-in-interest to her husband.  On July 14, 2022, Plaintiff filed this motion for trial preference pursuant to Code of Civil Procedure sections 36 subdivision (a).

A party who is over 70 years old 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; 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 subdivision (a) of Section 36 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.  (Code Civ. Proc., § 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.”  (Id., § 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.”  (Id.)

            Patricia Alexander is 88 years old and has dementia and other physical ailments.  She has moments of confusion, forgetfulness, dizziness, light-headedness, drowsiness, difficulty concentration, and impaired ability to remain alert and effectively communicate.  (Donadio Decl., ¶ 4; Archer Decl., ¶ 3.)  Her health and memory have been declining over the last few months and will continue to decline.  (Alexander Decl., ¶ 4; Archer Decl., ¶ 9.)

The Court finds that Patricia Alexander has a substantial interest in the action as a whole.  Under section 36 subdivision (a), a doctor’s declaration is not necessary; an attorney’s declaration suffices.  The declarations establish that Alexander’s health and age are such that a preference is necessary to prevent prejudicing her interest in the litigation.  Here health, memory, and ability to focus and communicate have already deteriorated and there is no evidence they will improve.  To the contrary, the evidence is that her condition will continue to decline.  Granting preference here is necessary to ensure Alexander can participate in the trial while her health permits.

Defendants request that the Court shorten the notice period for motions for summary judgment and summary adjudication.  The Court cannot do that.  (See McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 115-18; see also Urshan v. Musicians’ Credit Union (2004) 120 cal.App.4^th 758, 765-66 (discussing McMahon and reversing judgment for failure to provide notice by the statutorily required minimum time period).)  At most, parties may stipulate to waive the statutorily mandated minimum notice period.  (See Credit Suisse First Boston Mortgage Capital v. Danning, Gill, Diamond & Kollitz (2009) 178 Cal.App.4th 1290, 1301.) 

The motion is GRANTED.  Trial is set for December 12, 2022 at 9 a.m.  The Final Status Conference is November 28, 2022 at 9 a.m.  The parties are to meet and confer on a trial setting order.  The Court sets a status conference re trial setting order for September 2, 2022 at 9 a.m.

The moving party is to give notice.