Judge: Laura A. Seigle, Case: 22STCV03105, Date: 2022-08-24 Tentative Ruling

Case Number: 22STCV03105    Hearing Date: August 24, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On January 26, 2022, Plaintiffs Eckart Salquist and Jenny Salquist filed a complaint alleging personal injury due to asbestos exposure.  On July 18, 2022, Plaintiff filed this motion for trial preference pursuant to Code of Civil Procedure sections 36 subdivisions (a), (d), and (e).

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.)

The court has discretion to grant a motion for trial preference accompanied by clear and convincing medical documentation concluding that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months and satisfying the court that the interests of justice will be served by granting the preference.  (Code Civ. Proc., § 36, subd. (d).)  In addition, the court in its discretion may grant a motion for preference supported by a showing that satisfies the court that the interests of justice will be served by granting the preference.  (Id., § 36, subd. (e).) 

“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.)

            Eckart Salquist is 71 years old and has mesothelioma.  He has been admitted to the hospital twice since being diagnosed, in November and December 2021.  (Staggs Decl., ¶ 12.)  The attorney and doctor declarations do not present evidence about Eckart Salquist’s current condition and his ability to participate in trial prep and trial.  The declarations provide information about how mesothelioma generally progresses, but no specific evidence about how Mr. Salquest’s disease is progressing and his current condition.

The Court finds that Eckart Salquist has a substantial interest in the action as a whole, but the evidence does not establish that preference is necessary to prevent prejudicing his interest in the litigation.  Nor is there clear and convincing medical documentation raising substantial medical doubt of his survival beyond six months.

The motion is DENIED without prejudice.

The moving party is to give notice.