Judge: Laura A. Seigle, Case: 22STCV36076, Date: 2023-04-27 Tentative Ruling

Case Number: 22STCV36076    Hearing Date: April 27, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On November 14, 2022, Plaintiffs Robert Bruna and Debbie Bruna filed this action against multiple defendants for personal injury caused by asbestos exposure.  Plaintiffs then filed this motion for trial preference pursuant to Code of Civil Procedure sections 36, subdivisions (a) and (d). 

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.)  The court has discretion to grant a motion for trial preference accompanied by clear and convincing medical documentation concluding that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months and satisfying the court that the interests of justice will be served by granting the preference.  (Code Civ. Proc., § 36, subd. (d).)

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 have not filed proofs of service showing they served Ford Construction Company, Inc.; Henry Company LLC, and Soco West Inc. with the complaint and summons before filing this motion.  Before the hearing, Plaintiffs are to file those proofs of service, dismiss those defendants, or file notices of settlement regarding those defendants. 

Robert Bruna is 70 years old and was diagnosed with mesothelioma.  (Cameron Decl., ¶ 4.)  He had surgery and was in the hospital for 15 days.  (Id., ¶ 6.)  His treating doctor states he has “a particularly poor prognosis,” which is “worsened by his early diffuse chest wall recurrence and by involvement of multiple lymph node areas.”  (Id., ¶ 14.)  The treating doctor states there is substantial medical doubt of his survival beyond six months.  Plaintiffs have established that the health of Robert Bruna is such that a preference is necessary to prevent prejudicing his interest in the litigation.

Subject to Plaintiffs filing proofs of service for Ford Construction Company, Inc.; Henry Company LLC, and Soco West Inc., dismissing those defendants, or filing notices of settlement regarding those defendants, the motion for trial setting preference is GRANTED.  Trial is set for August 21, 2023 at 9 a.m.  The Final Status Conference is August 7, 2023 at 9 a.m. The court sets a status conference re a trial setting order for May 5, 2023 at 8:30 a.m. 

The moving party is ordered to give notice.