Natalino Rocca and Renee Rocca v. Amcord, Inc., et al.

Alternatively, VWR requests that the court continue the hearing to cure the defective notice period. (VRW's response at p.6.)

VWR argues that the rule that trial courts have no authority to continue hearings on motions for summary judgment to cure notice defects does not apply here because there is no bona fide notice defect to cure. (See Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1267; McMahon v. Superior Court (2003) 106 Cal. App. 4th 112, 118.)

Here, the court's CMO is not a local rule but a court order. The court is not refusing to hear VWR's motion but finds that the motion was not timely filed. The court may not continue the hearing on this matter to cure the notice defect. Accordingly, VWR's motion for summary adjudication is denied. III.

Conclusion

VWR's motion for summary adjudication is untimely. Accordingly, the motion is denied. Plaintiffs to give notice.

STATE OF CALIFORNIA¿ ¿ FOR THE COUNTY OF LOS ANGELES .. DEPARTMENT 14 ¿ ¿ NATALINO ROCCA and RENEE ROCCA, Plaintiffs,¿ v. AMCORD, INC., et al. Defendants.¿¿ | Case No. 26STCV16332 ¿¿¿¿ Hearing Date: August 21, 2026 Time: 9:00 a.m. ¿ [TENTATIVE] ORDER RE: ¿ PLAINTIFFS' MOTION FOR TRIAL PREFERENCE | I.

Background

On May 21, 2026, Plaintiffs Natalino and Renee Rocca filed their complaint for personal injury alleging Mr. Rocca - now age 79 - developed malignant mesothelioma from exposure to asbestos containing products during his time as a laborer at various construction sites between 1971 and 2018.

Plaintiffs now move for trial preference, arguing Mr. Rocca is over the age of 70, has a substantial interest in the action as a whole, and that his health is such that preference is necessary to prevent prejudicing Plaintiffs' interest in the litigation. Alternatively, Plaintiffs contend they present clear and convincing evidence that Mr. Rocca's illness raises a substantial medical doubt of his survival beyond six months.

On August 11, 2026, Defendant Highland Stucco and Lume Products, Inc. ("Highland") opposed. On the same date, Dunn-Edwards Corporation ("Dunn"), Cemex, Inc. ("Cemex"), Parex USA, Inc. ("Parex"), Kaiser Gypsum Company, Inc.("Kaiser Gypsum"), Hanson Permanente Cement, Inc. ("Hanson"), and Sherwin-Williams Company ("Sherwin") joined Highland's opposition.

Highland argues that Plaintiffs have not demonstrated that trial preference is necessary to prevent prejudice to Mr. Rocca's interest in litigation because they failed to establish that Mr. Rocca is unable to participate in this case.

On August 14, 2026, Plaintiffs replied, arguing that Mr. Rocca's declaration and the declaration of Plaintiffs' counsel are sufficient to show that Mr. Rocca's health is such that preference is necessary to prevent prejudicing his interests.

The court finds Plaintiffs satisfied their burden to present sufficient evidence that trial preference is necessary to prevent prejudicing Plaintiffs' interest in the litigation. The motion for trial preference is granted. II.

Discussion

A.

Legal Standard

A party who is over 70 years old may petition the court for a preference for trial date, 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., Sec. 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., Sec. 36.5.)

In addition, the court may 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. Sec. 36, subd. (d).)

"Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference." (Code Civ. Proc. Sec. 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., Sec. 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.) B.

Analysis

Plaintiff Natalino Rocca is 79 years old and was diagnosed with mesothelioma in February 2026. (Rocca Decl. at P.1.)

In July 2025, Mr. Rocca went to the emergency room for low oxygen levels and discovered fluid in his lungs. (Id. at P.2.) Doctors drained three liters of fluid from his lungs and installed a chest tube which remained in his body until around April 2026. (Id.)

Mr. Rocca is receiving immunotherapy but cancelled his most recent treatment in July 2026 because he was admitted to the emergency room for septic shock. (Id. at P.3.) Mr. Rocca's immunotherapy will resume on August 7, 2026. (Id.)

Since his diagnosis, Mr. Rocca has been suffering from fatigue and weakness which worsens after immunotherapy, impeding his ability to concentrate on tasks or communicate with others. (Id. at P.4.)

Mr. Rocca is also short of breath, which interferes with his ability to stay focused, makes it difficult to walk from one room to another, and causes him dizziness. (Id. at P.5.)

Mr. Rocca is often in pain, which further impedes his ability to communicate with others and concentrate. (Id. at P.6.)

Mr. Rocca is no longer able to perform basic chores, cook, drive, or engage in activities he used to enjoy. (Id. at P.7.)

Although Mr. Rocca believes he is still capable of participating in trial, he doubts he will be able to participate meaningfully in trial as time passes and his symptoms worsen. (Id. at P.9.)

Plaintiffs' counsel, Christine Renken, declares that Mr. Rocca's January 2026 scans showed that he had pleural thickening in his lungs. (Renken Decl. at P.6.) The scan showed worse pleural thickening compared to a scan taken in August 2026. (Id.)

By March 2026, new scans showed a 33mm increase in the thickened areas of his lungs compared to the January scans. (Id.)

In April 2026, another scan showed that the thickening spread to other areas of Mr. Rocca's right lung, causing the lower part of the right lung to collapse. (Id.)

During his April 3, 2026 admission to the emergency room, Mr. Rocca was suffering from pneumonia and sepsis, likely caused by his underlying mesothelioma. (Id.) Mr. Rocca lost a quarter of his lung capacity due to the rapid development of his mesothelioma. (Id.)

In May 2026, scans showed tumor masses and collapsed lung tissue which raised concerns for metastatic disease. (Id.) Scans in June 2026 also showed more tumor-like masses in his right lung indicating increased metastatic disease. (Id.)

In July 2026, Mr. Rocca was again admitted to the emergency room for sepsis, congestive heart failure, and a urinary tract infection requiring admission until he was discharged on July 23, 2026. (Id.)

Mr. Rocca also has a past medical history of congestive heart failure, COPD, coronary heart disease, diabetes, stroke, and a coronary bypass surgery. (Id.)

Plaintiffs' counsel asserts that given Mr. Rocca's age, health, metastatic mesothelioma, and worsening symptoms, Mr. Roca "will be unable to participate in his own case, attend his own trial, or provide meaningful and competent testimony" unless trial preference is granted. (Id. at P.9.)

In opposition, Highland argues that Plaintiffs failed to show that preference is necessary to prevent prejudice to Mr. Rocca's interests because Plaintiffs' counsel's declaration "does not identify any treating physician who has made that medical diagnosis, nor does it cite any medical prognosis specifically concluding that Mr. Rocca is likely to become unable to testify or assist counsel within the 120-day period contemplated by Plaintiffs' motion. Rather, those conclusions appear to be based largely on counsel's general experience of litigating mesothelioma cases and her review of medical records." (Opp. at p.3.)

Highland also argues that "Plaintiffs have not shown that Mr. Rocca presently lacks the ability to communicate with counsel, understand proceedings, testify, or otherwise participate in the litigation." (Id.)

Highland also argues that Plaintiffs will not be prejudiced if trial preference is denied because Plaintiffs already preserved Mr. Rocca's testimony through deposition. (Id. at p.5.)

Highland argues that setting trial less than 120 days from the date of the hearing on this matter will violate Defendants' due process rights. (Id. at pp.5-6.) Alternatively, Highland requests that conditions be imposed on trial and discovery deadlines. (Id. at p.7.)

Plaintiffs move for trial preference under Code of Civil Procedure section 36, subdivision (a), which required Plaintiffs to show that Mr. Rocca (1) has a substantial interest in the action as a whole and (2) his health is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.

The evidence before the court is sufficient to establish that Plaintiff is entitled to a trial preference under Code of Civil Procedure section 36 subdivision (a). There is no dispute that Plaintiff's age is above the threshold required under the statute, or that he has a substantial interest in the litigation.

Plaintiffs' counsel's declaration demonstrates that Mr. Rocca's mesothelioma is advancing rapidly and that his scans suggest that the disease is metastatic. (Renken Decl., at P.6.) Additionally, the declaration shows Mr. Rocca was already in poor health and had a history of congestive heart failure, COPD, coronary heart disease, diabetes, stroke, and a coronary bypass surgery. (Id.)

Mr. Rocca's own declaration sufficiently demonstrates that the mesothelioma negatively impacted his ability to concentrate, communicate with others, walk, drive, and perform basic tasks. (Rocca Decl., at P.P.4-6.) The evidence shows Mr. Rocca's symptoms and disease are worsening, meaning he will be unable to meaningfully participate in trial unless the court grants trial preference.

Although Highland argues that the declarations of Mr. Rocca and Ms. Renken lacked testimony from any treating physician on Mr. Rocca's medical condition, Code of Civil Procedure section 36, subdivision (a) expressly allows plaintiffs seeking trial preference to support their motions with affidavits from counsel or from the party seeking preference based on information and belief as to the medical diagnosis and prognosis of any party.

Mr. Rocca's advanced age coupled with the severity of his symptoms and the rapid progression of his disease supports a finding that trial preference is necessary to prevent prejudice to Mr. Rocca's interests in litigation.

Additionally, given the severity of Mr. Rocca's mesothelioma and his other serious health conditions, the evidence shows clearly and convincingly that there is substantial medical doubt that he will survive beyond six months. Accordingly, the court finds that Plaintiffs meet the requirements of Code of Civil Procedure, section 36, both subdivisions (a) and (d).

Defendants request accommodations for discovery and motion deadlines, status conferences, and the trial setting conference. The parties appear amenable to further discussion of the appropriate deadlines for discovery and law and motion matters prior to the submission of a proposed trial setting order. If necessary, the court will review any jointly submitted trial setting order and make rulings on any disputed deadlines at the hearing on the proposed trial setting order. III.

Conclusion

Plaintiffs' motion for trial setting preference is granted. The parties are to meet and confer regarding appropriate conditions for a trial setting order.

The court sets trial for December 14, 2026 at 9 a.m. The final status conference is set for November 30, 2026 at 9 a.m. The court sets a status conference re: trial setting order for September 2, 2026 at 9 a.m.

Plaintiffs are ordered to give notice. | Home -->)" -->