Judge: Laura A. Seigle, Case: 23STCV21638, Date: 2023-11-21 Tentative Ruling
Case Number: 23STCV21638 Hearing Date: February 16, 2024 Dept: 15
On September 7,
2023, Plaintiffs Harold D. Hermann and Inge B. Hermann filed their action for
personal injury caused by asbestos exposure. On January 22, 2024, Plaintiffs filed this
motion for trial preference under Code of Civil Procedure section 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 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.) In addition, 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. (Id.,
§ 36, subd. (d).)
“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.)
As an initial
matter, Plaintiffs did not file a proof of service showing service of the
complaint and summons on Lumberjack Building Material. Section 36, subdivision (c)(1) requires that
all essential parties be served with process or have appeared before a
plaintiff files a motion for preference.
Plaintiffs did not satisfy this requirement. Either Plaintiffs must file a proof of
service showing they served the complaint and summons on Lumberjack Building
Material before they filed this motion, or Plaintiffs must dismiss that defendant,
or the court will deny this motion.
Plaintiff Harold D.
Hermann is 74 years old and was diagnosed with malignant pleural mesothelioma. (Summers Decl., ¶¶ 2-3.) He suffers from shortness of breath, fatigue,
anxiety, dramatic weight loss, loss of appetite, gastrointestinal symptoms, pain,
and discomfort. (Id., ¶ 5.) He is undergoing immunotherapy treatments and
additional evaluation to prepare for possible further surgery. (Cameron Decl., ¶ 5.) His symptoms have intensified, and he is
unable participate in normal duties without suffering from shortness of breath,
dizziness, and fatigue. (Summers Decl.,
¶ 5.) His condition is declining
at an increasing pace. (Summers Decl.,
¶¶ 5-6; Cameron Decl., ¶¶ 5, 7.)
Defendants argue that Dr.
Cameron’s declaration is stale, contradictory, and insufficient to support a
conclusion that he has less than six months to live. (Cartportland’s Opposition at pp. 4-5, W.W
Henry’s Opposition at p. 6.) Defendants further
argue that Plaintiffs have not provided evidence as to Harold D. Hermann’s
current medical condition. (W.W. Henry’s
Opposition at p. 4.) A motion under
section 36(a) is not premised on the plaintiff not living much longer. Rather such a motion is based on the assertion
that the health of the party is such that a preference is necessary to prevent
prejudicing the party’s interest in the litigation. Here, evidence supports the conclusion that Hermann’s
health is declining whether or not he lives for more than six months, and that
he will not be able to participate in litigation that continues for many months
and years.
The court finds that Harold
D. Hermann has a substantial interest in the action as a whole. The evidence
supports the assertion that Plaintiff’s age and health will continue to
decline. (Summers Decl., ¶¶ 5-6; Cameron
Decl., ¶¶ 5, 7.) Granting preference
here is necessary to ensure Plaintiff’s participation in the litigation and trial
while his health permits.
Subject to Plaintiffs
filing a proof of service showing they served the complaint and
summons on Lumberjack Building Material before they filed this motion, or
Plaintiffs dismissing that defendant, 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 10, 2024 at 9
a.m. The final status conference is scheduled for May 27, 2024 at 9 a.m. A status conference regarding the trial
setting order is set for March 1, 2024 at 9:00 a.m.
The moving party is to
order to give notice.