Judge: Laura A. Seigle, Case: 22STCV12696, Date: 2023-04-25 Tentative Ruling

Case Number: 22STCV12696    Hearing Date: April 25, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On April 4, 2022, Charles Smedley and Donna Smedley filed this action against multiple defendants for personal injury caused by asbestos exposure.  Thereafter Charles Smedley died, and Plaintiffs Donna Smedley, Kristen Weir, and Suzanna Howard filed a First Amended Complaint.  On March 29, 2023, Plaintiffs 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.)  

As a preliminary matter, section 36, subdivision (c) requires the moving party to serve a declaration stating all essential parties have been served with process or have appeared.  Plaintiffs have not filed proofs of service showing they served Canoga Building Supplies, La Habra Products, Inc., and Mission Stucco Co. with the complaint and summons or First Amended Complaint before filing this motion.  Before, the hearing, Plaintiffs are to file those proofs of service.

Donna Smedley is 79 years.  (Smedley Decl., ¶ 1.)  Plaintiffs state she has several chronic health conditions, is in constant pain, takes 10 different medications, has difficulty moving around, has fallen several times, and is depressed.  (Id., ¶¶ 2-3, 5.)  Defendants argue the medical records from February 22, 2023 do not support these claims.  Those medical records indicate Donna Smedley is able to walk independently, does not use assistive devices such as a walker or cane, can manage her finances independently, has an exercise routine of walking, has not fallen within the previous three months, has no memory concerns, and feels down and depressed more than half the time but does not have anxiety or suicidal ideation.  (Jones Decl., Ex. 1.) 

The court finds that Plaintiff has a substantial interest in the action as a whole.  However, the evidence does not establish that her health and age are such that a preference is necessary to prevent prejudicing her interest in the litigation.  Donna Smedley’s memory and ability to communicate are not compromised.  Based on the medical records, her health appears stable.  The evidence is dispute about whether she can walk unassisted, but if she does have trouble walking and risks falling, accommodations can be made to assist her at trial. 

Plaintiffs complain this case is not moving forward and Defendants have not conducted discovery since finishing Charles Smedley’s deposition in August 2022.  This case is more than a year old, and discovery should be well underway.  All parties should be conducting discovery now.

Also, several defendants have not filed answers to the First Amended Complaint – 3M Company, Hill Brothers Chemical Company, and Honeywell International Inc.  These defendants are to file answers immediately, and if they do not, Plaintiffs are to seek entry of default after giving notice.  Further, if Plaintiffs did previously serve Canoga Building Supplies, La Habra Products, Inc., and Mission Stucco Co. with the First Amended Complaint and summons, those defendants are to immediately file answers, and if they do not, Plaintiffs are to seek entry of default after giving notice.  At the May 10, 2023 group status conference, the court intends to set a trial date in this case, but only if all defendants have answered, been dismissed, or been defaulted.

This motion for trial setting preference is DENIED.  If Donna Smedley’s health worsens, Plaintiffs may file another motion for preference.  

The moving party is ordered to give notice.