Judge: Laura A. Seigle, Case: 23STCV06726, Date: 2023-08-23 Tentative Ruling

Case Number: 23STCV06726    Hearing Date: August 23, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On March 27, 2023, Plaintiff Kunigar Haney filed this action for personal injury caused by asbestos exposure. On July 28, 2023, Plaintiff filed this motion for trial preference under Code of Civil Procedure sections 36, subdivisions (a).  

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.)  

“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.)

Plaintiff Kunigar Haney is 70 years old and has malignant pleural mesothelioma. (Falkner Decl., ¶ 6.)  She suffers from shortness of breath, difficulty breathing, tightness in her chest, dizziness, drowsiness, difficulty sleeping, reduced appetite, pain, weakness, fatigue, and weight loss. (Id. at ¶ 7.)  She began using supplemental oxygen in July 2023. (Ibid.)  She has undergone immunotherapy treatments, but her recent CT scans dated July 3, 2023 showed her mesothelioma has continued to spread.  (Falkner Decl., ¶ 8.)  She began receiving chemotherapy on July 19, 2023.  (Ibid.)  Plaintiff’s counsel provided a declaration that Plaintiff’s health will continue to decline and that she may not be able to participate in her trial.  (Id. at ¶¶ 9-10.)

The court finds that Plaintiff 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.  Given her age and health her condition likely will continue to decline. Granting preference here is necessary to ensure he 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.  Trial is set for December 18, 2023 at 9 a.m.  The Final Status Conference is December 4, 2023 at 9 a.m.  The court sets a status conference regarding a trial setting order for September 6, 2023 at 9 a.m.

The moving party is to give notice.