Judge: Bruce G. Iwasaki, Case: 25STCV05158, Date: 2025-05-29 Tentative Ruling

Case Number: 25STCV05158    Hearing Date: May 29, 2025    Dept: 14

SUPERIOR COURT OF THE STATE OF CALIFORNIA¿¿  

FOR THE COUNTY OF LOS ANGELES  

DEPARTMENT 14¿ 

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I.                Background

On February 21, 2025, Plaintiffs Charles and Bonnie Johnson filed their complaint for personal injury alleging that Mr. Johnson developed mesothelioma from exposure to asbestos and asbestos containing products through his work as a heavy equipment operator between approximately 1969 and 2001.

On May 2, 2025, Plaintiffs filed a motion for trial setting preference under Code of Civil Procedure Section 36, subdivision (a). On May 14, 2025, Defendant Ford Motor Company, (“Defendant” or “Ford”) filed opposition. The same day, Defendants Eaton Corporation, Cummins Inc., and Pneumo Abex and BWDAC joined Fort’s opposition. Ford argues that Plaintiffs fail to present sufficient evidence that the health of Mr. Johnson is such that preference is necessary to prevent prejudicing Plaintiffs’ interest in the litigation. On May 21, 2025, Plaintiffs filed their reply. On May 29, 2025, the court held a hearing.

The court grants Plaintiffs’ motion for trial preference.

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., § 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.)  

“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.”  (Code. Civ. Pro., § 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 Charles Johnson is 80 years old and was diagnosed with malignant, epithelioid mesothelioma in January 2025. (Presser Decl. ¶ 6.) Dr. Eric Presser, a board certified thoracic and cardiac surgeon opines: “it is my opinion, within a reasonable degree of medical certainty, that he will continue to experience increasing pain, shortness of breath, weakness, fatigue, and weight loss; that his symptoms and condition will worsen over time; and that he is now, and will remain, at high risk for rapidly-developing, life-threatening infections and other complications likely to arise from the continued progression of his disease, despite treatment. This will further impair his stamina and abilities to concentrate and effectively communicate. The more time passes, the more his ability to participate meaningfully in a lawsuit or at trial, will diminish.” (Presser Decl. ¶ 11.) Dr. Presser bases his opinion on his “education, training and experience, as well as my knowledge of Mr. Johnson’s diagnosis and observation of his disease progression.” (Ibid.) Dr. Presser spoke with Mr. Johnon on April 29, 2025, and reported the following symptoms: “Mr. Johnson told me his cough started about 2 years before he went to the urgent care center and after a few times, they finally obtained a CXR leading to the imaging that showed his malignant mesothelioma. Mr. Johnson has started immunotherapy as per his oncologists’ recommendation. He told me that since he started his treatments he has lost his appetite and food just does not taste the same. The discomfort in his right chest from his surgery has slowly subsided but he mentioned many times throughout our conversation how he has significant shortness of breath and dyspnea on exertion along with a persistent cough with minimal exertion.” (Presser Decl. ¶ 9.) Dr. Presser also reviewed medical imaging taken on February 20, 2025. (Presser Decl. ¶ 8.)

Deborah Rosenthal, Plaintiffs’ attorney, opines: “Based on these facts, as well as my two decades of experience representing plaintiffs in asbestos injury cases such as this one, it is highly unlikely that Mr. Johnson will continue to be able to actively participate in his case and attend his own trial, if this matter is not set for a preferential trial date that is within 120 days of the hearing on this motion.” (Rosenthal Decl. ¶ 6.) Ms. Rosenthal further describes Mr. Johnson’s current health as follows: “I am informed and believe that Plaintiff Charles Johnson is 80 years old, born July 19, 1944. He was not diagnosed with malignant epithelioid mesothelioma until January 2025, but he suffered symptoms of this disease for up to two years prior, and by the time he was diagnosed, the cancer had metastasized to his lymph. Although surgery and immunotherapy have provided temporary relief, there is no cure for the cancer from which he suffers, and his immunocompromised condition makes him highly susceptible to other life-threatening illnesses and infections. Additionally, his disease symptoms have progressed since he first developed a persistent cough that sent him to urgent care: He has lost his energy and appetite, he can no longer perform routine tasks or walk any significant distances, and his cough, shortness of breath, and overall discomfort and stress are interfering with his ability to focus and communicate” (Rosenthal Decl. ¶ 4.)  

 Plaintiffs also attach to Ms. Rosenthal’s declaration a rough copy of Mr. Johnson’s deposition taken on April 23, 2025 in which he describes his current health. (Rosenthal Decl. Ex. A.) In pertinent part Mr. Johnson states that he is experiencing a “sporadic cough”, he cannot “sleep real well at night” and he gets “short of breath pretty easy” (Rosenthal Decl. Ex. A, 141:4-8) Mr. Johnson also states that he has experience a “little” loss of appetite, but was not currently experiencing pain or discomfort. (Id. at 141:15-19.)

The opposing Defendants do not dispute that Mr. Johnson is above the statutory age threshold or that Plaintiffs have a substantial interest in the litigation. Instead, Ford argues that Plaintiffs fail to present sufficient evidence to show that Mr. Johnson’s health is such that preference is necessary to prevent prejudicing Plaintiffs’ interest in the litigation. Ford argues: “Dr. Presser fails to explain why he claims there is still substantial medical doubt that Mr. Johnson’s survival beyond 6 months is in question despite the localized nature of his mesothelioma and what Mr. Johnson’s own treating physicians conclude.” (Opposition at p. 3.) Ford relies on selected post operative medical records indicating that Mr. Johnson’s mesothelioma presented as “a single circumscribed nodule within the fissure between the right lower lobe and right middle lobe. These so called 'localized malignant mesotheliomas' have a better prognosis than the more common varieties.” (Black Decl. Ex 1 at Johnson.Charles-000015.) Ford also relies on a medical record from Mr. Johnson’s February 26, 2025 follow up visit which described his current symptoms including “no weakness, no altered taste, no weight loss… no pain…patient reports: no difficulty breathing no cough… Patient reports: no nervousness, no anxiety, no depression, no hallucinations… Patient appears: in no apparent distress, well developed and well nourished.” (Black Decl. Ex. 2 at Johnson Charles-000003-000004.) Ford also relies on Mr. Johnson’s deposition testimony in which he describes his course of treatment, and admits that no physician has told him his prognosis was less than six months. (Black Decl. Ex. 3, 49:2- 50:12.)

In reply, Plaintiffs argue they present sufficient evidence to satisfy their burden. Plaintiffs first argue that the opposing Defendants are applying the incorrect standard to this motion arguing Plaintiffs must require medical documentation to support their motion. (Reply at pp. 2-4.) Plaintiffs further argue that Defendant fails to present any contrary medical testimony to controvert Dr. Presser’s declaration and instead rely on arguments of counsel. Plaintiffs argue: “It defies logic and governing authorities to allow the conclusory, speculative and selfserving statements of Defendants’ counsel to trump the statutorily authorized and required declaration of Plaintiffs’ counsel, particularly when the latter is based on sound medical evidence and Defendants offer none in support of their argument. Thus, because the evidence supports the conclusion that Mr. Johnson is over the age of 70 and his health is such that a preference is necessary to avoid prejudicing his substantial interest in the action, Mr. Johnson should be granted a preferential trial date regardless of Defendants’ attempt to downplay the significance of his symptoms.” (Reply at p. 4.)

The evidence before the court is sufficient to establish that Plaintiffs are entitled to a trial preference. There is no dispute that Mr. Johnson’s age is above the threshold required under section 36, subdivision (a) and that he has a substantial interest in the litigation. There is also sufficient evidence to show Mr. Johnson’s health is such that preference is necessary to prevent prejudicing Plaintiffs’ interest in the litigation. There is substantial evidence from the declaration of Dr. Presser and Ms. Rosenthal that Mr. Johnson’s health is likely to decline because of his illness and course of treatment. (Presser Decl. ¶ 11, Rosenthal Decl. ¶ 6.) Ford presents medical documents which purport to show that Mr. Johnson’s current health is relatively positive. (See Black Decl. Ex. 2 Johnson Charles-000003-000004, Ex. 3, 49:2- 50:12.)  However, the most recent evidence of Mr. Johnson’s current symptomology is from the Dr. Presser on April 29, 2025 in which he describes a loss of appetite and significant respiratory issues. (Presser Decl. ¶ 9.) Moreover, the undisputed expert testimony is that Mr. Johnson’s health is likely to decline further in the future and there is a potential for rapid decline as a result of his illness and course of treatment. Defendant does not present any contrary expert testimony to interpret Mr. Johnson’s medical records or deposition testimony and instead relies exclusively on the arguments of counsel. So while there is some ambiguity as to whether Mr. Johnson’s current health would, by itself, prejudice to Plaintiffs’ interest in the litigation, there is sufficient evidence that Mr. Johnson’s prognosis and course of illness mean his health is likely to prejudice Plaintiffs’ interest in the future if trial preference is not granted. Therefore, the court finds Plaintiffs satisfy their burden.  

III.           Conclusion

Plaintiffs’ motion for trial setting preference is granted. The court orders the parties to meet and confer regarding the appropriate conditions for a trial setting order. The court sets a status conference regarding the trial setting order for June 23, 2025 at 9 A.M. The court sets a final status conference for September 15, 2025 at 9 A.M.. The court sets trial for September 29, 2025 at 9 A.M.