Judge: Laura A. Seigle, Case: 37, Date: 2022-11-01 Tentative Ruling

Case Number: 37-2022-00018334    Hearing Date: November 1, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On May 13, 2022, Plaintiffs Kenneth Kranz and Lucinda Kranz filed a complaint alleging personal injury due to asbestos exposure.  On October 5, 2022, Plaintiffs filed this motion for trial preference pursuant to Code of Civil Procedure sections 36, subdivision (a).

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.)

“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.”  (Id.)

As a preliminary matter, section 36 requires the moving party to serve a declaration stating all essential parties have been served with process or have appeared.  Plaintiffs’ counsel filed such a declaration.  But of the 31 defendants, no defendants has answered, only one defendant has been dismissed, and only one defendant has filed a motion to quash.  Plaintiffs filed no proofs of service showing all defendants were served with the complaint and summons before Plaintiffs filed this motion.  Plaintiffs are to file proofs of service showing Plaintiffs served the complaint and summons on all defendants, except for Union Carbide (dismissed) and Superior Lidgerwood Mundy Corporation (motion to quash filed), before Plaintiffs filed this motion on October 5, 2022.

            Plaintiff Kenneth Kranz is 84 years old and has mesothelioma.  He suffers from shortness of breath, weakness, difficulty walking and getting up out of chairs, and loss of weight.  (Peterson Decl. at ¶¶ 6-7.)  The Court finds that Kenneth Kranz has a substantial interest in the action as a whole.  The evidence establishes that his health and age are such that a preference is necessary to prevent prejudicing his interest in the litigation.  Given his age and health his condition likely will continue to decline.  Granting preference here is necessary to ensure he can participate in the trial while his health permits.

Defendants request that the Court shorten the notice period for motions for summary judgment and summary adjudication.  The Court cannot do that.  (See McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 115-18; see also Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 765-66 (discussing McMahon and reversing judgment for failure to provide notice by the statutorily required minimum time period).)  At most, parties may stipulate to waive the statutorily mandated minimum notice period.  (See Credit Suisse First Boston Mortgage Capital v. Danning, Gill, Diamond & Kollitz (2009) 178 Cal.App.4th 1290, 1301.) 

Subject to Plaintiffs filing the proofs of service showing Plaintiffs served the complaint and summons on all defendants, except for Union Carbide and Superior Lidgerwood Mundy Corporation, before October 5, 2022, the motion is GRANTED.

Trial is set for February 27, 2023 at 9 a.m.  The Final Status Conference is February 14, 2023 at 9 a.m.  The court sets a trial setting conference for November 9, 2022 at 8:30 a.m.

The moving party is to give notice.