Judge: Laura A. Seigle, Case: 23STCV16412, Date: 2024-02-06 Tentative Ruling

Case Number: 23STCV16412    Hearing Date: February 6, 2024    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On July 13, 2023, Plaintiffs Norayr Arutunyan and Sedik Kirakosyan filed this action for personal injury caused by asbestos exposure.  On January 8, 2024, Plaintiffs 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.)

Arutunyan is 70 years old and was diagnosed with malignant mesothelioma.  (Sandoval Decl. at ¶¶ 2-3.)  Arutunyan suffers from constant physical pain, shortness of breath and difficulty breathing, physical and mental fatigue, weight fluctuations, and trouble sleeping.  (Id. at ¶ 9.)  Arutunyan’s difficulty effectively communicating, remaining alert, and focusing results in exhaustion and stress.  (Ibid.)  His condition is in serious decline.  (Sandoval Decl., at ¶ 10.)

Defendants do not directly oppose Plaintiffs’ motion for trial preference but request the court to impose certain conditions, such as shortened notice periods for motions for summary judgement.  (CVS Pharmacy’s Conditional Non-Opposition at pp. 3-4.)  The court cannot shorten the notice periods for motions for summary judgement.  (McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 115-18; see also Urshan v. Musician’s Credit Union (2004) 120 Cal. App.4th 758, 765-66 [discussing McMahon and reversing judgement for failure to provide notice by the statutorily required minimum time period].)  The parties may stipulate to waive the statutorily mandated minimum notice period.  (Credit Suisse First Boston Mortgage Capital v. Danning, Gill, Diamond & Kollitz (2009) 178 Cal.App.4th 1290, 1301.)

The court finds that Arutunyan has a substantial interest in the action as a whole.  The evidence shows that granting preference is necessary to ensure Arutunyan’s participation in the litigation and trial while his health permits and prevent prejudicing his interest in the action.

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 June 3, 2024 at 9 a.m.  The final status conference is scheduled for May 20, 2024 at 9 a.m.  A status conference regarding the trial setting order is set for February 20, 2024 at 9:00 a.m.

The moving party is to order to give notice.