Judge: Laura A. Seigle, Case: 22STCV11362, Date: 2022-08-02 Tentative Ruling

Case Number: 22STCV11362    Hearing Date: August 2, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On April 1, 2022, Plaintiffs Thanh M. Nguyen and Bichlam Do filed this action against multiple defendants for personal injury caused by asbestos exposure.  Plaintiffs filed this motion for trial preference pursuant to Code of Civil Procedure sections 36 subdivisions (d) and (e).

            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).)  In addition, the court in its discretion may grant a motion for preference supported by a showing that satisfies the court that the interests of justice will be served by granting the preference.  (Id., § 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., § 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.)

            Plaintiffs submitted evidence that Nguyen has malignant pleural mesothelioma.  Dr. Fereidoun Abtin submitted a declaration stating he reviewed Nguyen’s medical records, pathology reports, CT, PET-CT, and chest films and discussed his diagnosis and treatment with other medical professionals.  Based on this review, he concluded Nguyen has malignant pleural mesothelioma, epithelial type.  Surgery was not successful in removing all of the tumor.  Since the surgery, Nguyen has suffered from fluid buildup, pain, and difficulty breathing.  He has been to the emergency room multiple times.  Last month Nguyen had to go to the emergency room to have fluid drained from his heart and could have died if he had not gone to the hospital.  Dr. Abtin explained in detail the basis for his opinion that there is substantial doubt of Nguyen’s survival beyond six months.  The Court finds this is sufficient to meet the clear and convincing standard for granting this motion.  The Court further finds that the interests of justice will be served upon the granting of preference in this case as this would allow Nguyen to pursue his case while he is still able to.

            Some of the defendants contend Nguyen’s doctor’s declaration is insufficient because he does not specify the medical records he reviewed and does not give information about Nguyen’s past, current or future medical care, and there is no declaration from the emergency room doctor who treated him.  Defendants do not cite any law that medical records must be attached or specified in the doctor’s declaration, and there is no dispute that Nguyen has been to the emergency room multiple times.

Defendants also argue that granting the motion will deprive them of their due process rights, deny them the ability to make a summary judgment motion and prepare for trial, and impede the court’s ability to control its calendar.  That is true of every preference case, and if that were enough to deny a preference motion under section 36 subdivision (d) and (d), no such preference motion would be granted.

Defendants request many conditions, some of which the court cannot grant.  For example, the Court lacks the power to change the notice and filing periods for motions for summary judgment and summary adjudication.  (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, 765-766 [discussing McMahon and reversing judgment for lack of 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.) 

The motion is GRANTED.  Trial is set for November 28, 2022 at 9 a.m.  The Final Status Conference is November 14, 2022 at 9 a.m.  The parties are to meet and confer on a trial setting order.  The Court sets a status conference re trial setting order for August 23, 2022 at 9 a.m.

The moving party is to give notice.