Judge: Laura A. Seigle, Case: 22STCV30677, Date: 2023-02-24 Tentative Ruling

Case Number: 22STCV30677    Hearing Date: February 24, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

Plaintiffs Lucile Lazio and John Lazio filed a complaint alleging personal injury due to asbestos exposure.  On January 30, 2023, 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.)

As a preliminary matter, section 36 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, but Houbigant, Inc. has not appeared and Plaintiffs did not file a proof of service showing service of the complaint and summons on that defendant.  Before the hearing, Plaintiffs’ counsel is to file a proof of service showing Plaintiffs served Houbigant, Inc. with the complaint and summons before they filed this motion.

            Lucille Lazio is 76 years old and has mesothelioma.  (Lazio Decl., ¶¶ 1, 6.)  She has shortness of breath, weakness and fatigue and is getting weaker.  (Id.., ¶ 7.)  She has trouble focusing, sometimes is too tired to do anything, and has difficulty communicating.  (Id., ¶¶ 8, 9, 14.)  The court finds that Lucille Lazio has a substantial interest in the action as a whole, and preference is necessary to prevent prejudicing her interest in the litigation and to allow her to participate in the litigation and trial while her health still allows it. 

Subject to Plaintiffs filing proofs of service showing they served Houbigant, Inc. with the complaint and summons before filing this motion, the motion is GRANTED.

Trial is set for June 20, 2023 at 9 a.m.  The Final Status Conference is June 5, 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 March 1, 2023 at 9 a.m. 

The moving party is to give notice.