Judge: Laura A. Seigle, Case: 23STCV00437, Date: 2023-04-04 Tentative Ruling

Case Number: 23STCV00437    Hearing Date: April 4, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On May 31, 2022, Plaintiffs Bareh and Gen Bareh filed a complaint alleging personal injury due to asbestos exposure.  On March 8, 2023, Plaintiffs filed this motion for trial preference pursuant to Code of Civil Procedure sections 36 subdivisions (a), (d), and (e).

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).)  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).) 

“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.)

            Samson Bareh is 75 years old and has mesothelioma.  He has severe pain and a shortness of breath, and his physical condition is likely to get worse.  (Horn Decl., ¶ 29.)  Whether he will survive beyond six months is not an element of a motion for preference under section 36, subdivision (a).  Therefore, that his disease is progressing slowing may be a bar to a motion under section 36, subdivision (d), but not to a motion under subdivision (a).  The court determines that Bareh’s health is such that taking more than two or three years to get to trial will prejudicing his interest in the litigation, and granting preference is necessary to prevent that prejudice.

The motion is GRANTED.

Trial is set for July 31, 2023 at 9 a.m.  The Final Status Conference is July 17, 2023 at 9 a.m.  The parties are to meet and confer on a trial setting order.  The Court sets a status conference re trial setting order for April 20, 2023 at 9 a.m. 

The moving party is to give notice.