Judge: Laura A. Seigle, Case: 22STCV21416, Date: 2023-02-22 Tentative Ruling

Case Number: 22STCV21416    Hearing Date: February 22, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On June 30, 222, Plaintiffs Darren Metcalf and Tasca Snow (“Plaintiffs”) filed this action for personal injury caused by asbestos exposure.  On January 24, 2023, Plaintiffs filed this motion for trial preference under Code of Civil Procedure section 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).)  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.)

Dr. Eric Presser’s declaration states that he has personally reviewed Darren Metcalf’s medical records and spoke with him on January 18, 2023.  (Presser Decl., ¶¶ 14, 18.)  Metcalf receives chemotherapy treatments every three weeks since July 26, 2022.  (Metcalf Decl., ¶ 9; Presser Decl., ¶ 17.)  Metcalf suffers from weakness, fatigue, weight loss, pain, physical limitations, depression, difficulty sleeping, and loss of appetite.  (Presser Decl., ¶¶ 18, 21; Metcalf Decl., ¶¶ 3-7, 11.)  Metcalf has metastatic malignant mesothelioma that has spread through his groin and abdominal regions.  (Presser Decl., ¶ 20.)  His health will continue to decline and there is substantial medical doubt as to his survival beyond the next six months. (Presser Decl., ¶¶ 21-22.)

Defendants argue that Dr. Presser only relies on four pages of medical diagnosis and did not personally treat Metcalf.  (Whittaker, Clark & Daniels Opposition at p. 4; Chattem Opposition at p. 4.)  Defendants also argue they will be deprived of the opportunity to complete discovery and other pre-trial preparation. (Whittaker, Clark & Daniels Opposition at p. 5; Chattem, Inc.’s Opposition p. 5.)  Plaintiffs respond that they will meet and confer on a trial setting order, and they are willing to accommodate the discovery needs of all parties, including shortened time on discovery deadlines.  (Reply at pp. 5-6.)  Plaintiffs state they have produced all medical records and social security records in their possession and will produce additional medical records and military records once they obtain them.  (Id. at p. 3; Shef Decl., ¶ 5.)

Dr. Presser’s declaration provides sufficient details about Metcalf’s medical records, condition, and prognosis.  (Presser Decl., ¶¶ 14-21.)  Plaintiffs also provide medical documentation to support the diagnosis.  (Shef Decl., Ex. 1; Shef Decl. ¶ 5; Reply at p. 2.)  There is sufficient evidence to meet the clear and convincing standard for granting this motion.  The interests of justice will be served upon the granting of preference in this case as this would allow Metcalf to pursue his case while he is still able to.

Defendants request the Court to impose certain conditions, including a shortened notice period for motions for summary judgment, expedited identification of witnesses, production of all medical, employment, social security and disability records, and bankruptcy trust filings, among other requests.  (Chattem Opposition at p. 6; Charles B. Chrystal Company Opposition at p. 2.)  The court cannot shorten the notice period 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, 765-66 (discussing McMahon and reversing judgment for failure to provide notice by the 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.)

This motion for trial setting preference is GRANTED.  The parties are to meet and confer on a trial setting order.  Jury Trial is scheduled for June 19, 2023 at 9 a.m.  Final Status Conference is scheduled for June 5, 2023 at 9 a.m.  The court sets a conference re the trial setting order for March 1, 2023 at 9 a.m.

The moving party is ordered to give notice.