Judge: Laura A. Seigle, Case: 22STCV23582, Date: 2022-10-14 Tentative Ruling

Case Number: 22STCV23582    Hearing Date: October 14, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On July 21, 2022, Plaintiffs James Johnson and Kelley Johnson filed a complaint alleging personal injury due to asbestos exposure.  On September 19, 2022, 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.)

“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.)

            Plaintiff James Johnson is 73 years old and has mesothelioma.  (Rosenthal Decl. at ¶ 5.)  He suffers from shortness of breath, difficulty breathing, pain, difficulty sleeping, drowsiness, dizziness, weakness, and fatigue.  He cannot talk without extra oxygen.  (Presser Decl., ¶ 9.)  His physical and mental conditions will continue to get worse.  (Id. at ¶ 11.)

The Court finds that James Johnson has a substantial interest in the action as a whole.  The declarations establish that his health and age are such that a preference is necessary to prevent prejudicing his interest in the litigation.  His health and ability to communicate have already deteriorated and there is no evidence they will improve.  To the contrary, the evidence is that his condition will continue to decline.  Granting preference here is necessary to ensure Plaintiff can participate in the trial while his health permits.

Defendants request that the Court shorten the notice period for motions for summary judgment and summary adjudication.  The Court cannot do that.  (See McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 115-18; see also Urshan v. Musicians’ Credit Union (2004) 120 cal.App.4th 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 February 6, 2023 at 9 a.m.  The Final Status Conference is January 23, 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 October 25, 2022 at 9 a.m.

The moving party is to give notice.