Judge: Laura A. Seigle, Case: 22STCV39236, Date: 2023-04-25 Tentative Ruling

Case Number: 22STCV39236    Hearing Date: April 25, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On December 19, 2022 Plaintiffs Evaristo Juarez Olivas and Martha Patricia Montes Escobedo filed this action against multiple defendants for personal injury caused by asbestos exposure.  Plaintiffs filed this motion for trial preference pursuant to Code of Civil Procedure sections 36, subdivisions (a) and (d).  Only one Defendant (John K. Bice Co.) filed an opposition which did not meaningful oppose the grant of preference.

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).)

Evaristo Juarez Olivas is 82 years old and was diagnosed with mesothelioma on about April 16, 2022.  (Marquez Decl., ¶ 7.)  He suffers from shortness of breath, chest pain, heartburn, coughing, and loss of weight, and the illness interferes with his daily activities.  (Id., ¶¶ 8, 10.)  There is substantial medical doubt whether he will survive another six months.  (Id., ¶ 16.)  The court finds that Plaintiff 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.

This 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 Trial Setting Order for May 5, 2023 at 8:30 a.m. 

The moving party is ordered to give notice.