Judge: Laura A. Seigle, Case: 23STCV00437, Date: 2023-04-10 Tentative Ruling

Case Number: 23STCV00437    Hearing Date: April 10, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On January 9, 2023, Plaintiffs Samson 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).  The court continued the hearing to allow Defendants to file excerpts from the deposition of Plaintiff’s doctor and Plaintiffs to file a response to those excerpts.

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.  Plaintiffs’ expert opines Samson Bareh has severe pain and a shortness of breath, and his physical condition is likely to get worse.  (Horn Decl., ¶ 29.)  He states he reviewed Plaintiff’s medical records but does not state that he examined Plaintiff.  (Id., ¶ 2.)  The disease is slowly advancing in spite of immunotherapy.  (Id., ¶ 31.)  Plaintiff’s treating oncologist testified Plaintiff has epithelioid pleural mesothelioma which is less aggressive than sarcomatoid pleural mesothelioma.  (Sanderson Decl., Ex. A at pp. 20-21, 85.)  Whether Plaintiff survives through 2023 depends on how he tolerates his treatment and whether he is willing to change treatment but given the tempo of his disease thus far, it would not be unreasonable to expect him to survive through 2023.  (Id. at p. 30.)  He testified that Plaintiff has not lost a substantial amount of weight, he can walk on his own, he is not on supplemental oxygen, he was exercising three times a week, and he has minimal respiratory symptoms.  (Id. at pp. 40, 41, 82-84.)

            Plaintiffs did not show by clear and convincing evidence that Samson Bareh suffers from an illness raising substantial medical doubt of survival of that party beyond six months.  The treating doctor stated it is not unreasonable to expect him to live through 2023, the disease is progressing slowing, and Plaintiff’s condition allows him to walk, breathe, and exercise with minimal respiratory symptoms.  Plaintiffs’ expert’s conclusion is less convincing because it is based solely on medical records.  Also, his declaration does not mention longer survival times for patients like Samson Bareh with the less aggressive pleural epithelioid mesothelioma.

            Whether Samson Bareh will survive beyond six months is not an element of a motion for preference under section 36, subdivision (a).  Plaintiff’s condition allows him to participate in the litigation.  While at some time his condition will worsen to the point that he will not be able to participate in the litigation and his interest will be prejudiced, the evidence does not establish that will occur in the next six months. 

The motion is DENIED.  If Samson Bareh’s condition worsens and there is competent evidence showing his interest in the litigation will be prejudiced, Plaintiffs can file another motion for trial preference.

The moving party is to give notice.