Judge: Laura A. Seigle, Case: 23STCV00356, Date: 2023-04-07 Tentative Ruling

Case Number: 23STCV00356    Hearing Date: April 7, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR TRIAL PREFERENCE

On January 6, 2023, Plaintiffs Bonnie Snyder Fly and Dave E. Fly (“Plaintiffs”) filed this action against multiple defendants for personal injury caused by asbestos exposure.  On March 15, 2023, Plaintiffs filed this motion for trial preference under Code of Civil Procedure section 36, subdivision (a) and section 36.5.

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.)

Plaintiff Bonnie Snyder Fly is 77 years old and has malignant pleural mesothelioma. (Renken Decl., ¶ 6.)  She suffers from severe pain, difficulty breathing, fogginess, weakness, fatigue, difficulty concentrating, dizziness and lightheadedness, nausea, frequent vomiting, drowsiness, coughing fits, inappetence, and extreme unintentional weight loss.  (Renken Decl., ¶ 6; Fly Decl., ¶¶ 1, 5, 8, 9.)  She received a combination of chemotherapy, immunotherapy, and radiation therapy treatments. (Renken Decl., ¶ 6; Fly Decl., ¶ 4.)  She stopped receiving the treatments in March 2023 after her doctors determined she had an autoimmune response and potential liver failure. (Ibid.).  She was admitted to the Emergency Room for liver failure on March 30, 2023. (Reply at p. 6.)  Plaintiffs’ counsel provided a declaration that her health will continue to decline and that she may not be able to participate in her trial.  (Renken Decl., ¶¶ 5, 9.)

Defendants also argue that the references to Fly’s ability to participate in trial is speculative, and not supported by any medical records, conversations with her doctors, or a treatment plan.  (Opposition at p. 3.)  Defendants also contend that the declarations provided by Plaintiffs do not discuss Plaintiff’s life expectancy.  (Opposition at p. 3.)  

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, the attorney’s declaration supports a conclusion that Fly’s health is declining such that she will not be able to participate in litigation that continues for years.

The court finds that Fly has a substantial interest in the action as a whole. The declarations establish that her health and age are such that a preference is necessary to prevent prejudicing her interest in the litigation.  Granting preference here is necessary to ensure she can participate in this litigation and the trial while her health permits.

This motion for trial setting preference is GRANTED. The parties are to meet and confer on a trial setting order.  The Court sets the following:

Jury Trial is scheduled for July 31, 2023 at 9 a.m.  Final Status Conference is scheduled for July 17, 2023 at 9 a.m. The court sets a status conference re trial setting order for April 14, 2023 at 9 a.m.

The moving party is to order to give notice.