Judge: Laura A. Seigle, Case: 23STCV11921, Date: 2023-08-15 Tentative Ruling

Case Number: 23STCV11921    Hearing Date: October 3, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On May 25, 2023, Plaintiff Margarita Colemenero filed this action against multiple defendants for personal injury caused by asbestos exposure.  Plaintiff then filed this motion for trial preference pursuant to Code of Civil Procedure sections 36, subdivisions (a) and (d). 

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.)  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.  (Code Civ. Proc., § 36, subd. (d).)

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.  Plaintiff did not file a proof of service showing service of the complaint and summons on Himmel Management Co. LLC before filing this motion.  Plaintiff tried to dismiss that Defendant, but the request for dismissal was rejected (as was the request for dismissal of Himmel Media LLC).  Before the hearing, Plaintiff is to file the proof of service or dismiss Himmel Management Co. LLC

Margarita Colemenero is 80 years old and was diagnosed with mesothelioma.  (Nideffer Decl., ¶ 6.)  She had surgery and immunotherapy.  (Ibid.)  She has lost 30 pounds and is experiencing increasing pain.  (Sinclair Decl., ¶ 11.)  She is currently in hospice care.  (Id., ¶ 12.)  Plaintiff established her health is such that a preference is necessary to prevent prejudicing her interest in the litigation.

Subject to Plaintiff filing a proof of service for, or dismissing, Himmel Management, the motion for trial setting preference is GRANTED.  Trial is set for January 29, 2024 at 9 a.m.  The Final Status Conference is January16, 2024 at 9 a.m. The court sets a status conference re a trial setting order for October 11, 2023 at 8:30 a.m. 

The moving party is ordered to give notice.