Judge: Laura A. Seigle, Case: 23STCV10737, Date: 2023-08-08 Tentative Ruling

Case Number: 23STCV10737    Hearing Date: August 8, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On May 11, 2023, Plaintiff Harry Herbert Surtees filed a complaint alleging personal injury due to asbestos exposure.  On July 13, 2023, Plaintiff filed this motion for trial preference pursuant to 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 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 Harry Herbert Surtees is 77 years old and was diagnosed with mesothelioma.  (Brown Decl., ¶ 4; Surtees Decl., ¶ 1.)  He suffers from shortness of breath, pain, progressive weakness, constant fatigue, difficulty walking around, fluid buildup, loss of stamina, and coughing.  (Brown Decl., ¶¶ 6, 11; Surtees Decl., ¶¶ 2, 7, 11, 12, 14.)  He is also experiencing problems with mental endurance, dizziness, and lack of focus.  (Surtees Decl., ¶¶ 13, 15.)

Defendants argue Plaintiff filed this motion before he had served three defendants (Edelbrock, LLC, Henry Company LLC, and Sequoia Ventures, Inc.).  Plaintiff’s counsel states those defendants have been dismissed or settled.  Before the hearing date, Plaintiff is to file requests for dismissal or notices of settlement for those three defendants.

Defendants also argue Plaintiff failed to submit a doctor’s declaration to support a conclusion that he has less than a year to live. (Sherwin-Williams Opposition at p. 4; W.W. Henry Opposition at p. 4.)  Under section 36 subdivision (a), a doctor’s declaration is not necessary; an attorney’s declaration suffices.  The evidence provides sufficient details about Plaintiff’s medical records and condition.  (See, e.g., Brown Decl., ¶¶ 6-7, 11.)  Also, a motion under section 36 (a) is not premised on the plaintiff not living much longer.  Here, the evidence supports a conclusion that Surtees’ heath is declining, and that he will not be able to participate in litigation that continues for many months and years.

The court finds that Harry Herbert Surtees 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.  Given his age and health his condition likely will continue to decline.  Granting preference here is necessary to ensure Surtees can participate in the trial while his health permits.  

Subject to Plaintiff’s counsel filing notices of settlement or requests for dismissal for the three Defendants, 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 4, 2023 at 9 a.m.  The Final Status Conference is November 20, 2023 at 9 a.m. The court sets a status conference regarding a trial setting order for August 22, 2023 at 9:00 a.m. 

The moving party is to give notice.