Judge: Richard L. Fruin, Case: 22STCV29692, Date: 2023-01-04 Tentative Ruling

Department 
15    

Case Number: 22STCV29692    Hearing Date: January 4, 2023    Dept: 15

PLAINTIFF’S MOTION FOR TRIOn September 12, 2022, Plaintiffs Tony Nasr and Micheline Nasr filed this action against multiple defendants for personal injury caused by asbestos exposure.  On December 6, 2022, Plaintiffs filed this motion for trial preference pursuant to Code of Civil Procedure sections 36, subdivisions (a) and (d).  Defendants did not file oppositions.

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.)  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.  (Code Civ. Proc., § 36, subd. (d).)

As a preliminary matter, section 36, subdivision (c) 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 that all defendants were served with the complaint and summons before Plaintiffs filed this motion.  (Rosenthal Decl., ¶ 10; Motion at p. 4.)  

Tony Nasr is 76 years old and has mesothelioma.  (Presser Decl., ¶ 6.)  He suffers from shortness of breath, weakness, chest pain, heartburn, fatigue, and loss of weight.  (Presser Decl., ¶¶ 6, 8, 9.)  There is substantial medical doubt whether he will survive another six months. (Rosenthal Decl., ¶ 5; Presser Decl., ¶ 13.)  The court finds that Plaintiff 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.

This motion for trial setting preference is GRANTED.  Trial is set for May 1, 2023 at 9 a.m.  The Final Status Conference is April 17, 2023 at 9 a.m. The court sets a trial setting conference for January 13, 2023 at 8:30 a.m.