Judge: Laura A. Seigle, Case: 22STCV25219, Date: 2022-12-30 Tentative Ruling

Case Number: 22STCV25219    Hearing Date: December 30, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On August 4, 2022, Plaintiff Benjamin Chavira Quiroz filed this action against multiple defendants for personal injury caused by asbestos exposure.  On August 15, 2022, Plaintiff filed its first amended complaint, alleging causes of action for (1) strict liability; (2) negligence; (3) false representation under Restatement of Torts section 402-B; (4) intentional tort/intentional failure to warn/concealment; and (5) premises owner/contractor liability.

On November 14, 2022, Plaintiff filed this motion for trial preference under Code of Civil Procedure sections 36, subdivision (d) and subdivision (e).  On November 16, 2022, Plaintiff filed the amended motion.

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.)

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.  (Marquez Decl., ¶ 5; Motion at p. 4.)  

Plaintiff submitted evidence that he has malignant pleural mesothelioma.  (Mittal Decl., Ex. B at ¶ 3.)  Plaintiff also provided a medical declaration that there is substantial medical certainty that Plaintiff’s health continues to decline and that there is substantial medical doubt as to his survival beyond the next six months.  (Ramirez Marquez Decl., ¶¶ 16-17.)  Ramirez Marquez’s declaration states he has been personally treating Plaintiff since February 22, 2022and has reviewed his medical records.  (Id. at ¶¶ 9, 15.)  Plaintiff underwent several rounds of chemotherapy treatments.  (Id. at ¶ 10.)  Plaintiff suffers from pain, fatigue, lethargy, anxiety, depression, difficulty getting up and walking, shortness of breath, chest pain, cough, and weight loss.  (Id. at ¶¶ 8, 10.) 

In their opposition, Defendants 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 timely file dispositive motions. (Honda Opposition at pp. 7-8; Colgate Opposition at pp. 6-8; Pep Boys Opposition at pp. 3, 5; Honeywell Opposition at pp. 1-2.)  In particular, Defendants argue that their interests of justice will be subverted because most of the evidence is located in Mexico where Plaintiff resides and is receiving medical treatment and that they will need more time to conduct international discovery.  (Honda Opposition at pp. 2, 4, 7, 8; Colgate Opposition at pp. 3, 7; Pep Boys Opposition at p. 2.)  

Plaintiff responds that Plaintiff is 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. 5.)  Plaintiff also argues that Defendants already have access to witnesses and Plaintiff has produced all medical records and employment records in their possession, although some records are still pending.  (Id. at p. 6.)

Based on the foregoing, the court finds that Plaintiff has raised substantial medical doubt of survival beyond six months by clear and convincing medical documentation.  Regarding documents and witnesses in Mexico, Plaintiff should not expect to use at trial any evidence from Mexico that Plaintiff does not provide to Defendants during discovery.

This motion for trial setting preference is GRANTED.   Trial is set for April 24, 2023 at 9 a.m.  The Final Status Conference is set for April 10, 2023 at 9 a.m.  A status conference re trial setting order is set for January 13, 2023 at 9 a.m.

The moving party is ordered to give notice.