Judge Laura A. Seigle, Case 23STCV01500 2023-04-20 Tentative Ruling

Judge: Laura A. Seigle, Case: 23STCV01500, Date: 2023-04-20 Tentative Ruling

Case Number: 23STCV01500 Hearing Date: April 20, 2023 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On January 23, 2023, Plaintiffs Frank Cantu and Mirtola Cantu filed this action for personal injury caused by asbestos exposure. On March 20, 2023, Plaintiffs filed this motion for trial preference under Code of Civil Procedure section 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 maybe 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. (CodeCiv. 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.)

As a preliminary matter, section 36, subdivision (c) requires the moving party to serve a declaration stating all essential parties have been served with process or have appeared. Plaintiffs have not filed a proof of service showing they served Carlisle Corporation with the complaint and summons before filing this motion. Before, the hearing, Plaintiffs are to file that proof of service, a notice of settlement with Carlisle Corporation, or a request to dismiss Carlisle Corporation.

Plaintiff Frank Cantu is 73 years old and has mesothelioma. (Presser Decl., ¶ 5.) He suffers from significant weight loss, pain, loss of appetite, nausea, vomiting, difficulty sleeping, weakness, fatigue, and shortness of breath. He can barely get out of bed and do basic chores. He requires supplemental oxygen. (Presser Decl., ¶¶ 6, 8, 9, 12.) He is currently undergoing chemotherapy. (Id. at ¶ 8.) His health will continue to deteriorate, and he remains high risk for other life-threatening infections, and there is substantial medical doubt of his survival beyond four months from March 15, 2023. (Id. at ¶ 12.)

In opposition, Defendants argue that Dr. Presser did not personally treat Cantu and Plaintiffs’ evidence fails to meet the clear and convincing standard that his survival is doubtful beyond six months. However, Dr. Presser’s declaration provides sufficient details about Cantu’s medical records, condition, and prognosis. (Presser Decl., ¶¶ 6-9, 12-13.)

Defendants argue Plaintiffs have failed to provide discovery responses and documents. Defendants should first have a phone conversation with Plaintiffs’ counsel to attempt to resolve the discovery disputes. After that, if discovery disputes remain, Defendants are to schedule an immediate Informal Discovery Conference, and if the disputes remain unresolved after that, the ourt will set an expedited hearing schedule for motions to compel.

The court finds that Cantu 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. His health has already deteriorated and there is no evidence it will improve. Rather, the evidence is that his condition will continue to decline. Granting preference here is necessary to ensure he can participate in the trial while his health permits. However, Plaintiffs’ request that trial be set in 90 days rather than 120 days is not reasonable and would deprive Defendants of their right to take adequate discovery and prepare for trial.

Subject to Plaintiffs filing a proof of service showing service of the complaint and summons on Carlisle Corporation before filing this motion, a notice of settlement with Carlisle Corporation, or a request to dismiss Carlisle Corporation, this motion for trial setting preference is GRANTED. The parties are to meet and confer on a trial setting order. The trial is scheduled for August 14, 2023 at 9 a.m. The Final Status Conference is scheduled for July 31, 2023 at 9 a.m. The court sets a status conference re a trial setting order for May 4, 2023 at 9:00 a.m.

The moving party is to order to give notice.