Judge: Laura A. Seigle, Case: 23STCV15780, Date: 2023-10-27 Tentative Ruling

Case Number: 23STCV15780    Hearing Date: October 27, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On July 6, 2023, Plaintiff Jeanne Robinson filed her action for personal injury caused by asbestos exposure. On October 3, 2023, Plaintiff 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 is 75 years old and was diagnosed with malignant pleural mesothelioma.  (Willick Decl., ¶¶ 3, 6; Cameron Decl., ¶4.)  She suffers from shortness of breath, physical pain, and exhaustion and is using supplemental oxygen at all times.  She cannot walk far without resting, and after the first day of her deposition, she slept the entire day.  (Willick Decl., ¶ 8.)  

Defendants argue that Mr. Willick and Dr. Cameron’s declarations do not provide information as to Plaintiff’s current medical condition, treatment, or short-term prognosis. (Chanel’s Opposition at p.4.)

The court finds that Johnson has a substantial interest in the action as a whole.  The evidence shows she is in poor health, has very little stamina and energy, and is likely to experience continued decline.  (Willick Decl., ¶¶ 7-9; Cameron Decl., ¶¶ 13-14.)  Granting preference here is necessary to ensure Plaintiff’s ability to participate in the litigation and trial while her health permits.

Plaintiff’s motion for trial setting preference is GRANTED.  The parties are to meet and confer on a trial setting order.  The trial is scheduled for February 20, 2024 at 9:00 a.m.  The final status conference is scheduled for February 5, 2024 at 9:00 a.m.  A status conference regarding the trial setting order is set for November 8, 2023 at 9:00 a.m.

The moving party is to order to give notice.