Judge Laura A. Seigle, Case 22STCV33050 2023-02-24 Tentative Ruling

Judge: Laura A. Seigle, Case: 22STCV33050, Date: 2023-02-24 Tentative Ruling

Case Number: 22STCV33050 Hearing Date: February 24, 2023 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On October 7, 2022, Plaintiffs Eric Bozman and Cynthia Bozman (“Plaintiffs”) filed this action against multiple defendants for personal injury caused by asbestos exposure. On January 27, 2023, Plaintiffs filed this motion for trial preference pursuant to Code of Civil Procedure sections 36, subdivisions (a) and (e).

Defendant BWDAC, Inc. and Pneumo Abex LLC filed objections to the Declaration of Anya Fuchs. Nos. 1-5 are overruled. The Court did not rely on the evidence in No. 6.

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).)

Eric Bozman is 75 years old and was diagnosed with asbestos-related small cell lung carcinoma. (Fuchs Decl., Ex. F, 148:20-150:9; Motion at p. 5.) He suffers from shortness of breath, fatigue, chest pains, swelling and numbness in his lower legs, and difficulty breathing. (Fuchs Decl., Ex. E, pp. 1-2; Motion at p. 3.) He underwent multiple cycles of chemotherapy and lost significant weight and suffered from nausea and anemia during the course of chemotherapy. (Motion at p. 3; Fuchs Decl., ¶ 4.) Because Bozman reacted poorly to chemotherapy treatments, he opted for immunotherapy treatments. (Fuchs Decl., ¶ 6.)

Defendants argue Plaintiffs failed to file a doctor’s declaration. Under section 36 subdivision (a), a doctor’s declaration is not necessary. Plaintiffs’ evidence provides sufficient details about Bozman’s medical diagnosis and prognosis. (See, e.g., Fuchs Decl., ¶¶ 3-7.) 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, evidence supports a conclusion that Bozman’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.

Defendants further argue that a grant of trial preference will violate their due process rights because Defendants will not be able to adequately conduct discovery or prepare for trial. Defendants request the Court to order expedited identification of witnesses, production of all records, stipulation of a shortened notice period for summary judgment and summary adjudication motions, among other requests. Plaintiffs state that they are willing to facilitate a mutually agreeable trial setting order to accommodate the discovery needs of all parties on an expedited schedule. (Reply at pp. 2-3.) In particular, Plaintiffs agreed to stipulate to shortened notice of dispositive motions, and stipulate to the production of all medical, employment, social security, union, and military records in their possession within seven days of the date this motion is granted. (Id. at p. 7.)

Based on the foregoing, the Court finds that Eric Bozman 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. Given his age and health, his condition likely will continue to decline. Granting preference here is necessary to ensure he can participate in the trial while his health permits.

The motion for trial setting preference 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 court sets a conference re a trial setting order for March 3, 2023 at 8:30 a.m.

The moving party is ordered to give notice.