Judge: Laura A. Seigle, Case: 22STCV17273, Date: 2023-01-10 Tentative Ruling
Case Number: 22STCV17273 Hearing Date: January 10, 2023 Dept: 15
[TENTATIVE] ORDER RE MOTION FOR PREFERENCE
On May 25,
2022, Plaintiffs John David Lewis and Dorothy Rose Lewis filed this action for personal
injury caused by asbestos exposure. On November
14, 2022, Plaintiffs filed this motion for trial preference under Code of Civil
Procedure sections 36, subdivisions (a) and subdivision (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.) 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.)
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. Plaintiff’s counsel filed such a declaration. (Gold Decl., ¶ 4.)
John Lewis is 83 years old and was
diagnosed with lung cancer. (Gold Decl.,
¶¶ 10-11.) He suffers from
shortness of breath, pain, weakness, and fatigue. (Gold Decl., ¶¶ 5, 9, 11.) He underwent surgery
to remove part of his lung. (Gold Decl.,
¶ 11.) He was also admitted
to the hospital for some falls and high blood pressure and was diagnosed with a
brain bleed. (Ibid.) He has limited physical abilities and is
fatigued. (Lewis
Decl., ¶
9.)
His condition is worsening. (Id.
¶
11.)
In
their oppositions, Defendants argue that Plaintiffs did not show that John
Lewis is losing his ability to participate at trial and failed to submit a declaration
from a medical provider to support a conclusion that he has less than six
months to live. Under section 36
subdivision (a), a doctor’s declaration is not necessary. The evidence provides details about
Plaintiff’s medical records and condition. (See, e.g., Gold Decl., ¶¶ 10-11.) Also, a motion under section 36 (a) is not
premised on the plaintiff not living much longer. Rather such a motion is based on the
assertion that the health of the party is such that a preference is necessary
to prevent prejudicing the party’s interest in the litigation. Here,
the evidence supports a conclusion that John Lewis’ heath is declining whether
or not he lives for more than six months, and that he will not be able to
participate in litigation that continues for many months and years.
The Court finds that John Lewis has a substantial
interest in the action as a whole. The evidence establishes that his health and
age are such that a preference is necessary to prevent prejudicing his interest
in the litigation.
His health has already deteriorated and
there is no evidence it will improve. Rather,
the evidence is that his condition will continue to decline. Granting
preference here is necessary to ensure Lewis can participate in the trial while
his health permits.
This
motion for trial setting preference is GRANTED. The parties are to meet and confer on a trial
setting order. The Court sets the
following:
Trial is set for May 8, 2023 at 9
a.m. The Final Status Conference is April 24, 2023 at 9 a.m. The court sets a trial setting conference for
January 19, 2023 at 8:30 a.m.
The moving party is ordered to give
notice.