Judge Laura A. Seigle, Case 22STCV17939 2022-10-27 Tentative Ruling

Judge: Laura A. Seigle, Case: 22STCV17939, Date: 2022-10-27 Tentative Ruling

Case Number: 22STCV17939 Hearing Date: October 27, 2022 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On May 31, 2022, Plaintiffs Danny Clayton Lambert and Jerilene Kath Lambert filed a complaint alleging personal injury due to asbestos exposure. On September 29, 2022, Plaintiffs 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.)

As a preliminary matter, section 36 requires the moving party to serve a declaration stating all essential parties have been served with process or have appeared. Plaintiffs’ counsel filed such a declaration, but six defendants have not answered and Plaintiffs did not file proofs of service showing those six defendants were served with the complaint and summons before Plaintiffs filed this motion. Plaintiff states Air & Liquid Systems Corporation, General Electric Company, Viacom CBS Inc., and Warren Pumps LLC settled. But that still leaves Caterpillar, Inc. and Soco-Lynch Corporation. Before the hearing, Plaintiffs’ counsel is to file proofs of service showing Plaintiffs served Caterpillar, Inc. and Soco-Lynch Corporation with the complaint and summons before they filed this motion.

Danny Lambert is 72 years old and has mesothelioma, which is progressing from his lungs elsewhere in his body. (Sarvaria Decl., ¶ 11.) He is getting weaker and losing weight. (Sarvaria Decl., ¶ 4.) There is substantial medical doubt whether he will survive another six months. (Sarvaria Decl., ¶ 13.) The Court finds that Danny Lambert has a substantial interest in the action as a whole, and preference is necessary to prevent prejudicing his interest in the litigation.

Subject to Plaintiffs filing proofs of service showing they served Caterpillar, Inc. and Soco-Lynch Corporation with the complaint and summons before filing this motion, the motion is GRANTED.

Trial is set for February 21, 2023 at 9 a.m. The Final Status Conference is February 6, 2023 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 November 3, 2022 at 9 a.m. The Court also sets an Order to Show Cause re Dismissal pursuant to the settlement regarding Air & Liquid Systems Corporation, General Electric Company, Viacom CBS Inc., and Warren Pumps LLC for February 6, 2023 at 9 a.m. Plaintiffs are to file a notice of settlement regarding those four defendants forthwith.

The moving party is to give notice.