Judge: Laura A. Seigle, Case: 23STCV16061, Date: 2023-09-07 Tentative Ruling

Case Number: 23STCV16061    Hearing Date: March 26, 2024    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On July 10, 2023, Plaintiff Maria T. Lozano filed an action for personal injury caused by asbestos exposure.  On February 28, 2024, Plaintiff filed moved for trial preference under Code of Civil Procedure section 36, subdivisions (a) and (e).

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.)  Moreover, the court in its discretion may grant a motion for preference supported by a showing that satisfies the court that the interests of justice will be served by granting the preference.  (Id., § 36, subd. (e).)

“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 79 years old and was diagnosed with malignant epithelioid mesothelioma. (Sandoval Decl., at ¶¶ 2-3; Lozano Decl., Ex. A.)  She suffers from shortness of breath, fatigue, dizziness, extreme pain that requires powerful medication, and exhaustion.  (Lozano Decl., at ¶¶ 11-14.)  Her condition affects her ability to concentrate, remain alert, and effectively communicate.  (Id. at ¶ 15.)  Plaintiff has gone through approximately ten sessions of chemotherapy since July 2023.  (Id. at ¶ 10.)  She has gone to the emergency room four times, the most recent on February 21, 2024, due to extreme pain.  (Lozano Decl., at ¶ 13; Ex. E.)  Her condition is in serious decline as she has transitioned from prolonging life treatments of chemotherapy and/or immunotherapy to home hospice care.  (Sandoval Decl., at ¶ 10.)

Defendants argue that Plaintiff’s medical documentation does not indicate immediate deterioration in her condition and her current health status is unknown.  (DCo’s Opposition at p. 2; Honeywell’s Opposition at p. 2.)  

The court finds that Plaintiff has a substantial interest in the action as a whole.  She is in hospice care.  This and the evidence cited above show Plaintiff’s health is such that a preference is necessary to prevent prejudicing her interest in the litigation.

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 July 22, 2024 at 9 a.m.  The final status conference is scheduled for July 8, 2024 at 9 a.m.  A status conference regarding the trial setting order is set for April 17, 2024 at 9:00 a.m.

The moving party is to order to give notice.