Judge: Laura A. Seigle, Case: 22STCV18841, Date: 2022-10-20 Tentative Ruling

Case Number: 22STCV18841    Hearing Date: October 20, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On June 8, 2022, Plaintiffs Marni and Michael Regan filed this action against multiple defendants for personal injury to Marni Regan caused by asbestos exposure.  On September 26, 2022, 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 Regan has malignant pleural mesothelioma.  Dr. Samer Kanaan submitted a declaration stating he consulted with Regan and reviewed her medical records.  He performed a biopsy for a definite diagnosis and recommended chemotherapy and possible surgery.  He concluded the tumors will continue to grow, severely impacting her ability to breathe, and there is substantial doubt of her survival beyond 6 months.  (Kanaan Decl., ¶ 6.)  He explained in detail the basis for his opinion that there is substantial doubt of Regan’s survival beyond six months. 

            Defendants argue that Kanaan’s original declaration was incomplete because it did not address a September 8, 2022 surgery, which could prolong her life, even though Plaintiffs filed their preference motion more than two weeks after the surgery.  After Defendants filed their oppositions, on October 13, 2022 Kaanan filed a supplemental declaration stating he operated on Regan on September 8, 2022 and was not able to remove the tumor completely.  The surgery is not expected to slow the progression of her disease or improve her prognosis, and there is still a substantial medical doubt of her survival beyond six months  (Supp. Kanaan Decl., ¶ 5.) 

            The Court finds Plaintiffs’ evidence 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 Regan to pursue her case while she is still able to.  However, if Defendants want additional time to respond to the newly-filed supplemental declaration, the Court will continue the hearing to October 25, 2022 at 9 a.m.  Defendants may file a supplemental reply of no more than 3 pages by October 21, 2022 addressing the Supplemental Kaanan Declaration.

The motion is GRANTED.  Trial is set for February 13, 2023 at 9 a.m.  The Final Status Conference is January 30, 2023 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 October 28, 2022 at 9 a.m.

The moving party is to give notice.