Judge: Laura A. Seigle, Case: 22STCV22642, Date: 2023-03-08 Tentative Ruling

Case Number: 22STCV22642    Hearing Date: March 8, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On July 12, 2022, Plaintiff James Smagala filed this action for personal injury caused by asbestos exposure and later filed a first amended complaint.  On February 7, 2023, Plaintiff 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.  (Shef Decl., ¶ 4; Motion at p. 4.)  However, Whittaker, Clark & Daniels, Inc. never filed an answer to the first amended complaint, and Cummins Cal Pacific Holdings, LLC, Cummins Engine Company Inc., and Cummins Sales & Service have never filed any answer.  If these defendants have not filed answers and Plaintiff has not obtained entries of default against them, the court will dismiss them at the Final Status Conference.

Plaintiff James Smagala is 86 years old and has mesothelioma.  (Shef Decl., ¶¶ 2, 11.) He suffers from shortness of breath, pain, mental and physical fatigue, loss of weight, and difficulty sleeping.  (Motion at p. 4; Shef Decl., ¶ 12.)  Plaintiff’s counsel provided a declaration that Plaintiff’s health will continue to decline and that he may not be able to participate in his trial. (Shef Decl., ¶¶ 8, 12.)  

Defendants argue that Plaintiff did not show that Plaintiff is losing his ability to participate at trial and failed to submit a declaration from a medical provider to support a grant of preference.  (Colgate-Palmolive Opposition at pp. 2, 4.)  Under section 36 subdivision (a), a doctor’s declaration is not necessary.  The declaration provides details about Plaintiff’s medical records and condition.  (See, e.g., Shef Decl., ¶¶ 11-12.)  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 Plaintiff’s health 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 Plaintiff 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 he can participate in this litigation and the trial while his health permits.  

The motion is GRANTED.  Trial is set for July 3, 2023 at 9 a.m.  The Final Status Conference is June 20, 2023 at 9 a.m. The conference re trial setting order is for March 15, 2023 at 8:30 a.m.

The moving party is ordered to give notice.