MICHAEL DUFFEY, et al. vs 3M COMPANY, et al.

(2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.

Code of Civil Procedure section 36, subdivision (c) states:

(c) Unless the court otherwise orders:

(1) A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared.

(2) At any time during the pendency of the action, a party who reaches 70 years of age may file and serve a motion for preference.

“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. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36.” (Code Civ. Proc., § 36.5.) Thus, “a motion under subdivision (a) may be supported by nothing more than an attorney's declaration ‘based upon information and belief as to the medical diagnosis and prognosis of any party.’ [Citation].” (Fox v. Superior Court (Metalclad Insulation LLC) (2018) 21 Cal.App.5th 529, 534.)

Code of Civil Procedure section 36, subdivision (f) states:

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. 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.

“A consistent line of cases establish section 36 ‘grants a mandatory and absolute right to trial preference over all other civil matters lacking such a preference; the trial court ‘shall’ grant the preference and has no discretion to avoid the command of section 36[] in the interest of efficient management of the court's docket as a whole.’ [Citation].” (Pabla v. Superior Court (Dual Arch Int'l, Inc.) (2023) 90 Cal.App.5th 599, 604.)

2026CUAS063154: MICHAEL DUFFEY, et al. vs 3M COMPANY, et al.

“The application of section 36, subdivision (a), does not violate the power of trial courts to regulate the order of their business. Mere inconvenience to the court or to other litigants is irrelevant. [Citation]. Failure to complete discovery or other pre-trial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36. The trial court has no power to balance the differing interests of opposing litigants in applying the provision. The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations. [Citation]. Accordingly, subdivision (a) of section 36 is mandatory and absolute in its application in civil cases whenever the litigants are 70 years old.” (Swaithes v. Superior Court (1989) 212 Cal.App.2d 1082, 1085-1086.)

Some courts have raised due process as a possible limitation to trial setting. (See Roe v. Superior Court (Sheldon) (1990) 224 Cal.App.3d 642, 643, fn. 2 [“we are also aware that the due process implications of this approach have not yet been decided. [Citation]. In this case, we recognize that it may not be possible to bring the matter to trial within the technical limits of Code of Civil Procedure section 36, subdivision (f). However, defendant Esepenth has not appeared before this court to argue the matter”]; Peters v. Superior Court (County of Los Angeles) (1989) 212 Cal.App.3d 218, 227 [relating to Code of Civil Procedure section 36, subdivisions (b) and (f)].)

However, the Court in Pabla v. Superior Court (Dual Arch Int'l, Inc.) (2023) 90 Cal.App.5th 599, 604, footnote 5 states:

“Thus, relevant precedent upholds the absolute command of section 36(a) in light of its plain meaning, despite recognition that in certain instances there are strong countervailing considerations—deriving from principles of efficient trial court management; from fairness and due process to other litigants; and from divergent public policy or statutory contexts in which the section 36(a) mandate may be difficult, impractical, or impossible to realize. In short, we approach this case against a background of relevant precedent which holds section 36(a) is a comprehensive and final legislative judgment on the issue, which must prevail whenever the section 36(a) right is juxtaposed to another countervailing argument, based on whatever legitimate or seemingly compelling public interest.” [Citation].

The motion and supporting evidence has shown that Plaintiff Michael Duffey is over 70 years old, that he is has a substantial interest in the action as a whole and that his health is such that preference is necessary to prevent prejudicing his interest in the litigation. (Code Civ. Proc., § 36, subd. (a).) In addition, Plaintiff’s counsel has stated by declaration that all essential parties have been served with process or have appeared. (Code Civ. Proc., § 36, subd. (c)(1).) Therefore, all requirements appear to have been met for trial preference.

The Index of Exhibits In Support of Plaintiff’s Motion for Trial Preference filed on July 15, 2026 contain the medical records for Plaintiff Michael Duffey referenced by he Declaration of Douglas V. Dukelow. The weight of the medical records support Plaintiffs’ assertions that Plaintiff may lose the ability to participate in the litigation that his interests may be prejudiced if they are not given preferential trial setting. The medical records shows progressively

2026CUAS063154: MICHAEL DUFFEY, et al. vs 3M COMPANY, et al.

deteriorating conditions with expanding metastases and need for increased treatment. Episodes where Plaintiff Michael Duffey was feeling well enough to plan a vacation are on the same dates where the medical records also disclose new abnormalities and the necessity of continued palliative care. The standard under Code of Civil Procedure section 36, subdivision (a), does not require a heightened standard of proof. (Fox v. Superior Court, supra, 21 Cal.App.5th at p. 534.)

The Opposition filed by Defendants DCo, LLC and Ferguson Enterprises, LLC do not dispute that Plaintiff meets the requirements of Code of Civil Procedure section 36, subdivision (a), only asking the Court to ensure procedural protections to protect their own due process rights.

The Oppositions filed by Defendants Sterling Wander, LLP f/k/a Honeywell International, Inc. as Successor-In-Interest to Bendix, Redco Corporation f/k/a Crane Co., Metalclad Insulation, LLC, Kelsey-Hayes Company and Lennox Industries, Inc., The Goodyear Tire & Rubber Company and American Biltrite, Inc., Meritor, Inc. and Cummins, Inc., American Honda Motor Co., Inc. and Nissan North America, Inc., argue that Plaintiffs’ motion does not sufficiently show that Plaintiff Michael Duffey’s health is in a condition that makes preference necessary.

In the Reply, Plaintiff has presented the Declaration of Frank M. Ganzhorn, M.D., to discuss Plaintiff Michael Duffey’s condition and he concludes: “Mr. Duffey’s health will continue to affect the activities required for meaningful participation in this litigation, including sustained questioning, reviewing and understanding records, recalling events from his work and exposure history, communicating those events accurately to counsel, and attending and testifying at trial. Fatigue, cancer-related pain, reduced stamina, and the risk of further decline will make those tasks progressively more difficult. In my medical opinion, an expedited trial date is necessary to maximize the likelihood that Mr. Duffey can participate meaningfully in his own case while he remains able to do so.” (Ganzhorn Dec., ¶ 19.)

Given the foregoing, the Court GRANTS the motion.

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