Judge: Laura A. Seigle, Case: 23STCV00437, Date: 2023-05-17 Tentative Ruling
Case Number: 23STCV00437 Hearing Date: May 17, 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 a 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. On April 4, 2023, the court
denied the motion because Plaintiffs had not made the showing necessary under
section 36, saying “If Samson Bareh’s condition worsens and there is competent
evidence showing his interest in the litigation will be prejudiced absent a
grant of trial preference, Plaintiffs can file another motion for trial
preference.” Plaintiffs then filed
another motion for 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).) 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. This time, in addition to the declaration
from Plaintiffs’ expert that Plaintiffs filed with the previous motion
(discussed in the court’s prior ruling), Plaintiffs filed excerpts from the April
7, 2023 deposition of Samson Bareh. (Neira
Decl., Ex. 7.) Samson Bareh testified he
is feeling miserable, has memory problems that are getting worse, has trouble
seeing, is in a lot of pain, and is taking a lot of pain medication. (Id., Ex. 7 at pp. 14, 15, 72,
81.)
Defendants argue that Samson Bareh’s deposition testimony
about his physical and mental conditions should not be believed because he
remembered certain details at his deposition.
Having read the excerpts of the deposition transcript, the court finds
Samson Bareh’s testimony about his pain, trouble seeing, and memory problems is
credible. Defendants also argue that
this motion is an improper motion for reconsideration under Code of Civil
Procedure section 1008. The court denied
the first preference motion without prejudice. The deposition occurred on April 7, 2023,
after the April 4, 2023 ruling denying the previous motion for preference. Therefore, Plaintiffs could not have included
the transcript with the original motion papers.
And the deposition testimony provides more recent information about
Samson Bareh’s condition than the information presented in the original motion,
which was based on earlier medical records.
Because the court allowed Samson Bareh to file a new motion with evidence
that his condition is worsening, section 1008 is not implicated.
Samson Bareh’s recent deposition testimony is evidence
that his health is such that a preference is necessary to prevent prejudicing
his interest in the litigation. The
motion is GRANTED. Trial is set for
September 11, 2023 at 9 a.m. The final
status conference is set for August 28, 2023 at 9 a.m. The parties are to meet and confer on a trial
setting order. A status conference
regarding the trial setting order is set for May 30, 2023 at 9 a.m.
The
moving party is to give notice.