Judge: Laura A. Seigle, Case: 22STCV18173, Date: 2022-08-16 Tentative Ruling

Case Number: 22STCV18173    Hearing Date: August 16, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On June 1, 2022, Plaintiffs Hector Apodaca and Dolores St. Amour filed this action against multiple defendants for personal injury caused by asbestos exposure.  On July 22, 2022, Plaintiffs filed this motion for trial preference pursuant to Code of Civil Procedure sections 36 subdivisions (a) and (d).

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 that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.  (Code Civ. Proc., § 36, subd. (d).) 

“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.)

            Hector Apodaca is 94 years old and has mesothelioma.  His health has declined dramatically in the last two months, he has constant pain, and his chest is filling up with fluid.  His memory is declining.  (McCabe Decl., ¶¶ 8, 9; Presser Decl., ¶ 9.)

The Court finds that Hector Apodaca has a substantial interest in the action as a whole.  The evidence establishes that Hector Apodaca’s health and age is 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 and memory will continue to decline, and he will die of the disease.

Defendants request many conditions, some of which the court cannot grant.  For example, the Court lacks the power to change the notice and filing periods for motions for summary judgment and summary adjudication.  (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 5, 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 August 30, 2022 at 9 a.m.

The moving party is to give notice.