Judge: Laura A. Seigle, Case: 22STCV24870, Date: 2023-02-15 Tentative Ruling

Case Number: 22STCV24870    Hearing Date: February 15, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On August 2, 2022, Plaintiffs Rosa Ester Dominguez Murillo and Oscar Ortiz Mauricio (“Plaintiffs”) filed this action for personal injury caused by asbestos exposure.  On August 12, 2022, Plaintiffs filed their first amended complaint, alleging causes of action for strict liability, negligence, false representation, and intentional tort/intentional failure to warn/concealment.  On January 12, 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).)  “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 Murillo has malignant pleural mesothelioma.  Dr. Ramirez Marquez’s declaration states that he has reviewed Murillo’s medical records, has personally treated her, and last saw her on December 22, 2022 . (Id. at ¶¶ 9, 15.)  Murillo underwent multiple cycles of combination chemotherapy treatments.  (Id. at ¶ 10.)  Murillo suffers from shortness of breath, pain, persistent cough, fatigue, lethargy, anxiety, fearfulness, and depression.  (Id. at ¶¶ 8, 10.)  Her health will decline and there is substantial medical doubt as to her survival beyond the next six months.  (Ramirez Marquez Decl., ¶17.)

Defendants argue that Plaintiffs have not met the clear and convincing standard that Murillo is unlikely to live more than six months.  (Opposition at pp. 2-3.)  However, Dr. Ramirez Marquez’s declaration provides sufficient details about Murillo’s medical records, condition, and prognosis.  (Ramirez Marquez Decl., ¶¶ 8, 10, 15.)  Plaintiffs also provided medical documentation to support the diagnosis.  (Hunt Decl., Ex. B.)

Defendants also argue that their due process rights will be violated if this instant motion is granted because they will be deprived of the opportunity to conduct discovery, evaluate medical records, and adequately prepare for trial.  (Opposition at p. 5.)  Defendants argue that they will need more time to conduct international discovery because most of the evidence and witnesses are located in Mexico where Murillo resides and is receiving medical treatment.  (Id.)

Plaintiffs respond that they are willing to facilitate a mutually agreeable trial setting order to accommodate the discovery needs of all parties on an expedited schedule, including shortened notice for dispositive motions.  (Reply at p. 3.)  Plaintiffs contend that they have produced all medical records and employment records in their possession and will provide Defendants with any additional documents needed for trial preparation.  (Id. at p. 4.)

The Court finds that 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 Murillo to pursue her case while she 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.

The trial is scheduled for June 12, 2023 at 9 a.m.  The Final Status Conference is scheduled for May 29, 2023 at 9 a.m.  The Court sets a conference re trial setting order for February 22, 2023 at 9:00 a.m.

The moving party is ordered to give notice.