Judge: Laura A. Seigle, Case: 22STCV20267, Date: 2022-10-28 Tentative Ruling

Case Number: 22STCV20267    Hearing Date: October 28, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On June 21 2022, Plaintiff Virginia Perez Nunez filed this action against multiple defendants for personal injury caused by asbestos exposure.  On October 6, 2022, Plaintiff filed this motion for trial preference pursuant to Code of Civil Procedure sections 36 subdivision (d).

            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).)  “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.)

            Plaintiff submitted evidence that she has malignant pleural mesothelioma.  (Ramirez Marquez Decl., ¶ 7.)   She underwent chemotherapy and has pain, fatigue, nausea, dizziness, aches, and fever.  (Id., ¶ 10.)  Her health will decline, and there is substantial doubt of her survival beyond six months.  (Id., ¶¶ 15-17.) 

Defendants argue Plaintiff’s evidence is not sufficient because her doctor did not attach medical records to his declaration and it is not clear he is her treating physician.  (Opposition at p. 5.)  The declaration states the doctor treated Plaintiff, reviewed her records and is “intimately involved in the evaluation, are and treatment of” Plaintiff.  (Ramirez Marquez Decl., ¶¶ 9, 15.)  Also, according to Plaintiff, she produced her medical records to Defendants a month ago.  (Reply at p. 1.)  The declaration provides details about Plaintiff’s medical records and condition.  (See, e.g., id., ¶¶ 8, 10, 15.) 

            The Court finds there is sufficient evidence to meet the clear and convincing standard for granting this motion.  The motion is GRANTED.  Trial is set for February 21, 2023 at 9 a.m.  The Final Status Conference is February 6, 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 November 8, 2022 at 9 a.m.

The moving party is to give notice.