Judge: Laura A. Seigle, Case: 23STCV01500, Date: 2023-08-10 Tentative Ruling

Case Number: 23STCV01500    Hearing Date: August 10, 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 April 20, 2023, the court granted Plaintiffs’ motion for preference and set a trial date of August 14, 2023.  On May 28, 2023, Frank Cantu passed away, and on July 7, 2023, Plaintiffs Mirtola Cantu individually and as successor-in-interest to Frank Cantu, June Marie Cantu de Blanco, Tomas O. Cantu, Catarino Juan Cantu, Frank Cantu, Jr., and Kahla Davis filed a First Amended Complaint (“FAC”).  On July 14, 2023, Plaintiffs filed this second motion for trial preference pursuant to Code of Civil Procedure section 36, subdivisions (a) and (e).

            Plaintiffs filed Evidentiary Objections to the Declaration of C. Alan Brown filed by Defendant Paccar, Inc.  Objection Nos. 1 and 2 are overruled.

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.)  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.)

Mirtola Cantu is 73 years old and her health is in decline.  (Gold Decl., ¶ 11; Seawell Decl., ¶ 7.)  She suffers from coronary artery disease, hypertension, diabetes, hypercholesterolemia, peripheral vascular disease, hypertension, hyperlipidemia, chronic GERD (gastro-esophageal reflux disease), shortness of breath, anxiety,  and depression.  (Seawell Decl., ¶¶ 7, 9-10.)  She had a heart attack and quadruple bypass surgery in 2012 and underwent artery bypass grafts in 2014 and 2021.  (Id. at ¶ 8.)  Dr. Seawell last examined Cantu on May 31, 2023, and noted that she needed a wheelchair, and she had fallen on the pavement, and she had broken her finger.  (Id. at ¶ 9.)

In opposition, Defendants argue that the declaration of Dr. Seawell is conclusory and Plaintiffs failed to present evidence that Cantu’s existing medical conditions would prejudice her in the litigation.  (Pneumo Abex Opposition at pp. 2-3; Paccar Opposition at pp. 4-5.)  Paccar argues, based on the Brown Declaration, that her condition will not prejudice her interest in the litigation.  However, the Brown Declaration provides little context for that conclusion.  Non-preference cases usually take two to three or more years to reach trial.  Brown does not state whether he considered Mirtola Cantu’s ability to participate in a trial if the trial does not take place for two or more years from now. 

The evidence supports a conclusion that Cantu suffers from a number of serious medical conditions and her health is declining such that she will not be able to participate in litigation that continues for years.  The court finds that Mirtola Cantu has a substantial interest in the action as a whole. The evidence establishes 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 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 a trial for December 4, 2023 at 9 a.m.  The final status conference is on November 20, 2023 at 9 a.m.  The Court sets a status conference re a trial setting order for August 24, 2023 at 9:00 a.m.

The moving party is to give notice.