Judge: Laura A. Seigle, Case: 22STCV37672, Date: 2023-12-06 Tentative Ruling

Case Number: 22STCV37672    Hearing Date: December 6, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On November 30, 2022, Plaintiffs Herbert Mesirow and Debbie Mesirow filed this action for personal injury caused by asbestos exposure.  On November 7, 2023, Plaintiffs filed this motion for trial preference under Code of Civil Procedure section 36, subdivisions (a) and (e).

A party who is over 70 years old may petition the court for a preference, which the court shall grant if it 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 this subdivision 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.  (Id., § 36.5.) Moreover, 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.”  (Ibid.)

Plaintiff is 79 years old and was diagnosed with malignant mesothelioma.  (Dupree Decl., ¶¶ 2-3.)  Since his diagnosis, he suffers from constant physical pain, loss of weight, shortness of breath, physical and mental fatigue, and trouble breathing and sleeping.  (Id., ¶ 9.)  His condition impairs his ability to communicate, focus, and remain alert.  (Id.)  His health is in serious and rapid decline.  (Dupree Decl., ¶ 10.)

The court finds that Plaintiff has a substantial interest in the action as a whole.  The evidence supports the assertion that Plaintiff’s health is seriously compromised and will continue to decline.  (Id., ¶¶ 9-10.)  Granting preference here is necessary to ensure Plaintiff’s participation in the litigation and trial while his health permits and prevent prejudicing his interest.

Plaintiffs’ motion for trial setting preference is GRANTED.  The parties are to meet and confer on a trial setting order.  The trial is scheduled for April 1, 2024 at 9 a.m.  The final status conference is scheduled for March 18, 2024 at 9 a.m.  A status conference regarding the trial setting order is set for December 12, 2023 at 9:00 a.m.

The moving party is to order to give notice.