Judge Laura A. Seigle, Case 22STCV19009 2023-01-18 Tentative Ruling

Judge: Laura A. Seigle, Case: 22STCV19009, Date: 2023-01-18 Tentative Ruling

Case Number: 22STCV19009 Hearing Date: January 18, 2023 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On June 9, 2022, Plaintiffs Efren Valadez Chavez and Guadalupe Hernandez Enriquez filed this action for personal injury caused by asbestos exposure. On December 16, 2022, Plaintiffs filed this motion for trial preference under Code of Civil Procedure section 36, subdivision (d).

Defendant Kelly-Moore Paint Company filed a request for judicial notice of Nelson v. Adams USA, Inc. (2000) 529 U.S. 460, attached as Exhibit G to the Declaration of Bartek R. Rejch. Plaintiffs did not object. Therefore, the Court takes judicial notice of the document in accordance with Evidence Code section 452, subdivision (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.)

As a preliminary matter, section 36, subdivision (c) requires the moving party to serve a declaration stating all essential parties have been served with process or have appeared. Plaintiff’s counsel filed such a declaration. (Mittal Decl., ¶ 5.)

Plaintiffs submitted evidence that Chavez has malignant pleural mesothelioma. (Mittal Decl., ¶¶ 2-3.) Dr. Ramirez Marquez submitted a declaration stating that he has reviewed Chavez’s medical record, has treated him personally, and continues to be intimately involved in the evaluation, care, and treatment of Chavez. (Ramirez Marquez Decl., ¶ 9, 15.) Chavez received at least six cycles of chemotherapy treatments and continues to receive further treatment. (Id. at ¶ 10.) Chavez suffers from pain, fatigue, lethargy, anxiety, depression, difficulty getting up and walking, shortness of breath, chest pain, persistent cough, and weight loss. (Id. at ¶¶ 8, 10.) Dr. Ramirez Marquez concluded that there is substantial medical certainty that Chavez’s health continues to decline, and there is substantial medical doubt of his survival beyond six months. (Ramirez Marquez Decl., ¶¶ 16-17.)

Defendant Kelly-Moore Paint Company argues that Dr. Ramirez Marquez does not provide any foundation for the prognosis that Chavez is unlikely to live more than six months. (Ibid.) However, Dr. Ramirez Marquez’s declaration provides sufficient details about Chavez’s medical records, condition, and prognosis. (Ramirez Marquez Decl., ¶¶ 8, 10, 15.) Plaintiffs also provided medical diagnostic documentation to support the diagnosis. (Mittal Decl., Ex. B.)

Defendant also argues that a grant of trial preference will violate its due process rights because Defendant will not be able to adequately conduct discovery. (Opposition, pp. 5, 7.) Defendant states that Defendant has to rely on Plaintiffs to produce evidence because Plaintiffs, all witnesses, and all records are in Mexico. (Id. at p. 3.) Plaintiffs respond that they have produced substantial discovery information to Defendant, and that they will voluntarily produce Dr. Ramirez Marquez and other key witnesses, including Plaintiff Guadalupe Hernandez Enriquez and Chavez’s brother, Juan Valadez Chavez, for deposition. (Reply, pp. 5-6.) Plaintiffs also state that they are willing to facilitate a mutually agreeable trial setting order to accommodate the discovery needs of all parties on an expedited schedule. (Id. at p. 5.)

Based on the foregoing, the Court finds there is sufficient evidence 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 Chavez to pursue his case while he is still able to. Regarding documents and witnesses in Mexico, Plaintiffs should not expect to use at trial any evidence from Mexico that Plaintiffs do not provide to Defendants during discovery.

This motion for trial setting preference is GRANTED. The parties are to meet and confer on a trial setting order. Trial is set for May 15, 2023 at 9 a.m. The Final Status Conference is set for May 1, 2023 at 9 a.m. The Court sets a status conference regarding a trial setting order for January 25, 2023 at 9:00 a.m.

The moving party is to order to give notice.