Judge Laura A. Seigle, Case 22STCV30385 2022-12-22 Tentative Ruling

Judge: Laura A. Seigle, Case: 22STCV30385, Date: 2022-12-22 Tentative Ruling

Case Number: 22STCV30385 Hearing Date: December 22, 2022 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On September 16, 2022, Plaintiffs Karen Heine Hammel and David Hammel (“Plaintiffs”) filed a complaint against multiple defendants for personal injury caused by asbestos exposure. On November 17, 2022, Plaintiffs 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.)

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. Plaintiffs’ counsel filed such a declaration. (Powell Decl., at ¶ 5.)

Plaintiffs submitted evidence that Karen Heine Hammel has malignant pleural mesothelioma. (Mitchell Decl., ¶ 5.) Dr. William M. Mitchell’s declaration states he has treated Hammel and has reviewed her medical records. (Michell Decl., ¶ 6.) Hammel underwent several rounds of chemotherapy and immunotherapy treatments. (Id.) She suffers from nausea, dizziness, headaches, depression, fever, shortness of breath, and fatigue. (Mitchell Decl., ¶ 7.) Her health will decline, and there is substantial doubt of her survival beyond six months. (Id., ¶¶ 8-9.)

The Court finds Plaintiffs’ evidence is sufficient to meet the clear and convincing standard for granting this motion. Plaintiffs have provided a medical declaration to support the contention that there is substantial medical certainty that Hammel’s health continues to decline and that there is substantial medical doubt as to her survival beyond the next six months. (Mitchell Decl., ¶¶ 8, 9.) The Court further finds that the interests of justice will be served upon the granting of preference in this case as this would allow Hammel to pursue her case while she is still able to.

Defendants request that the Court shorten the notice period for motions of summary judgment. The Court cannot do that. (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.)

Plaintiff’s Motion is GRANTED. The motion is GRANTED. Trial is set for April 17 2023, at 9 a.m. The Final Status Conference is April 3, 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 January 6, 2023 at 9 a.m.

The moving party is ordered to give notice.