Judge: Laura A. Seigle, Case: 23STCV08217, Date: 2023-12-20 Tentative Ruling

Case Number: 23STCV08217    Hearing Date: December 20, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

Plaintiffs Arthur Carter and Judy Carter allege Arthur Carter was injured by exposure to asbestos.  On November 20, 2023, Plaintiffs filed this motion for trial preference under Code of Civil Procedure section 36, subdivision (a).

A party who is over 70 years old may petition the court for a preference, which the court shall grant if it 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 this subdivision 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.  (Id., § 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.” (Ibid.)

Plaintiff Arthur Carter is 78 years old and was diagnosed with malignant mesothelioma.  (Healy Decl., ¶¶ 2, 11.)  He has undergone multiple rounds of chemotherapy, biweekly immunotherapy sessions, and daily radiation treatments.  (Id. at ¶ 12.)  He suffers from shortness of breath, coughing, extreme weakness and fatigue.  (Id.)  

Defendants argue Mr. Healy’s declaration does not provide sufficient medical evidence or certainty about Plaintiff’s current medical prognosis.  (Exxon Mobile Corporation’s Opposition at pp. 3-4.)  Medical documentation is not necessary under section 36, subdivision (a).  Further, Defendants argue that the evidence presented does not indicate that Plaintiff’s health is in decline, pointing to his August 4, 2023 medical visit where he denied “any difficulty breathing” and stated his ability to “walk around and bike with no issues.”  (Id.; Healy Decl., Ex. A at p. 6.)  However, as mentioned above, Mr. Healy’s November 20, 2023 declaration states Plaintiff’s condition is now getting worse.

The court finds that Arthur Carter has a substantial interest in the action as a whole. The most recent evidence supports the conclusion that Plaintiff’s health will continue to decline. (See, e.g., Healy Decl., ¶¶ 8-12.)  Granting preference here is necessary to ensure Plaintiff’s participation in trial while his health permits.

Plaintiffs’ motion for trial setting preference is GRANTED.  The parties are to meet and confer on a trial setting order.  The trial is scheduled for April 16, 2024 at 9:00 a.m. The final status conference is scheduled for April 1, 2024 at 9:00 a.m.  A status conference regarding the trial setting order is set for January 2, 2024 at 9:00 a.m.

The moving party is to order to give notice.