Judge Laura A. Seigle, Case 22STCV23800 2023-03-23 Tentative Ruling

Judge: Laura A. Seigle, Case: 22STCV23800, Date: 2023-03-23 Tentative Ruling

Case Number: 22STCV23800 Hearing Date: March 23, 2023 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On July 22, 2022, Plaintiffs William Richard Osborn and Dee Ann Marek Osborn filed this action for personal injury caused by asbestos exposure. William Richard Osborn (“Decedent”) passed away, and on November 10, 2022, Plaintiffs Dee Ann Marke Osborn, individually and as successor-in-interest to, William Richard Osborn, and their children, Andrea Dee Lofton, Teresa Lee Ashley, Allison Drysdale filed their First Amended Complaint (“FAC”). On February 24, 2023, Plaintiffs filed their Second Amended Complaint (“SAC”) and included Kaleb Ashley, a 12-year-old great-grandson of Decedent, as a Plaintiff.

On February 27, 2023, Plaintiffs filed this motion for trial preference under Code of Civil Procedure sections 36, subdivisions (a) and (b). 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.) A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under the age of fourteen years unless the court finds that the party does not have a substantial interest in the case as a whole. (Code Civ. Proc., § 36, subd. (b).)

“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. Plaintiffs’ counsel filed such a declaration. (Gold Decl., ¶ 8.) However Plaintiffs filed no proof of service showing Plaintiffs ever served Soco-Lynch Corporation with any of the complaints and summons, and Soco-Lynch Corporation has never appeared. Before the hearing, Plaintiffs are to file a proof of service showing service of any of the complaints and summons on Soco-Lynch before Plaintiffs filed this motion.

Plaintiff Dee Ann Marek Osborn is 83 years old. (Gold Decl., ¶ 13.) Plaintiffs’ counsel states Osborn’s health is severely impaired and will continue to decline. (Gold Decl., ¶ 15.) Osborn’s medical conditions include chronic medical issues, such as COPD, asthma, atrial-fibrillation, aortic stenosis, osteopenia, high blood pressure, high cholesterol, congestive heart failure, hiatal hernia, and allergies. (Motion at p. 1; Gold Decl., ¶¶ 13-14; Ashely Decl., ¶ 3.) Osborn suffers from loss of strength and balance, insomnia, emotional distress, depression, mental confusion, and panic attacks. (Gold Decl., ¶ 14; Ashley Decl., ¶¶ 6-8.)

Defendants contend Osborn’s medical records indicate that Osborn’s symptoms are reasonably controlled, and she only has occasional mild wheezing. (Gold Decl., Ex. C.) Defendants also argue that the declaration of Plaintiffs’ counsel is conclusory and speculative, and Plaintiffs failed to submit a declaration from a medical provider to support a grant of preference. Under section 36 subdivision (a), a doctor’s declaration is not necessary. The declaration provides sufficient details about Osborn’s medical records and condition. (See, e.g., Gold Decl., ¶¶ 13-14.) The evidence supports a conclusion that Osborn suffers from a number of medical conditions and her health is declining such that she will not be able to participate in litigation that continues for many months and years.

Plaintiffs also argue that this motion should be granted because Plaintiff Kaleb Ashley is twelve years old and has a substantial interest in the outcome of this case. (Motion at p. 3.) Pursuant to Code of Civil Procedure section 377.60, only limited categories of people may file wrongful death actions: the decedent’s spouse, domestic partner, children, issue of deceased children; persons entitled to the decedent’s property; putative spouse, stepchildren, parents if dependent on the decedent; and a minor who resided for the previous 180 days in the decedent’s household and depended on the decedent for one half or more of his or her support. Kaleb Ashley could only potentially fall into the categories of (1) issue of deceased children or (2) a minor who resided with Decedent for the previous 180 days and was dependent on Decedent for his support. The complaint does not allege any factual basis for Kaleb Ashley falling into either category, and Plaintiffs submitted no evidence establishing a factual basis for Kaleb Ashley having a wrongful death claim under section 377.60. Therefore, Plaintiffs did not establish Kaleb Ashley has a substantial interest in this litigation.

The Court finds that Osborn has a substantial interest in the action as a whole. The evidence establishes that Osborn’s health and age are such that a preference is necessary to prevent prejudicing her interest in the litigation. Granting preference here is necessary to ensure she can participate in this litigation and the trial while her health permits.

Subject to Plaintiffs filing the proof of service described above, the motion is GRANTED.

The parties are to meet and confer on a trial setting order. Trial is set for July 17, 2023 at 9 a.m. The Final Status Conference is July 3, 2023 at 9 a.m. The court sets a status conference re trial setting order for April 5, 2023 at 9 a.m.

The moving party is to give notice.