Judge: Laura A. Seigle, Case: 22STCV24368, Date: 2023-01-12 Tentative Ruling

Case Number: 22STCV24368    Hearing Date: January 12, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On July 28, 2022, Plaintiffs Gary May and Teresa May filed this action for personal injury caused by asbestos exposure.  On December 14, 2022, Plaintiffs 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. Plaintiffs’ counsel filed such a declaration.  (Dupree Decl., ¶ 2; Motion at p. 1.)  However, Plaintiffs did not file a proof of service showing service of the complaint and summons on General Electric Company.  Therefore, Plaintiffs must file a proof of service showing they served the complaint and summons on General Electric Company before Plaintiffs filed this motion, or they must dismiss General Electric Company.

Plaintiff Gary May is 72 years old and has mesothelioma.  (Dupree Decl., ¶¶ 3-4.)  Gary May provided a medical declaration that Plaintiff’s health will continue to decline and that there is substantial medical doubt as to his survival beyond the next six months. (Presser Decl., ¶¶ 18, 20-21.)  He suffers from exhaustion, chest pain, anxiety, depression, constipation, weakness, fatigue, shortness of breath, and weight loss.  (Id. at ¶¶ 15, 17.)  He had multiple rounds of chemotherapy and radiation therapy. (Id. at ¶ 17.)  His condition impairs his ability to focus, remain alert, and communicate effectively, and is becoming worse.  (Dupree Decl., ¶10.)

The court finds that Gary May 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 the trial while his health permits. 

Defendants request the Court to impose certain conditions, including a shortened notice period for motions for summary judgment and summary adjudication, expedited identification of witnesses, production of employment and medical records, to protect their due process rights. Plaintiffs argue that Defendants are not entitled to such conditions.  (Motion at p. 8; Reply at pp. 6-7.)  The Court cannot shorten the notice period 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.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.)

Subject to Plaintiffs filing a proof of service showing they served General Electric Company before they filed this motion or dismissing General Electric Company, the motion is GRANTED.

The parties are to meet and confer on a trial setting order.  Trial is set for May 8, 2023 at 9:00 a.m.  The Final Status Conference is April 24, 2023 at 9:00 a.m.  The court sets a conference regarding the trial setting order for January 26, 2023 at 9:00 a.m. 

The moving party is to give notice.