Judge Laura A. Seigle, Case 22STCV32540 2023-03-21 Tentative Ruling

Judge: Laura A. Seigle, Case: 22STCV32540, Date: 2023-03-21 Tentative Ruling

Case Number: 22STCV32540 Hearing Date: March 21, 2023 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On October 4, 2022, Plaintiffs Elaine Adelia Hickey Herman and Jacob Russell Herman, Sr. (“Plaintiffs”) filed this action against multiple defendants for personal injury caused by asbestos exposure. On February 21, 2023, Plaintiffs filed this motion for trial preference under Code of Civil Procedure section 36, subdivisions (d) and (e).

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.)

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. (Gamble Decl., ¶ 22; Motion at p. 9.) However, Plaintiffs did not file any proof of service showing they served the complaint and summons on American International Industries, Inc., Asbestos Corporation Limited, Beacon CMP Corporation, Glamour Industries, Co., Los Angeles Rubber Company, The Neslemur Company, and PTI Union, LLC. These defendants have not filed answers or otherwise appeared. (American International Industries filed an answer but American International Industries, Inc. did not.)

Plaintiffs filed evidence that Elaine Herman has malignant pleural mesothelioma. (Haber Decl., ¶¶ 5-6; Gamble Decl., Ex. D.) Dr. Steven E. Haber submitted a declaration stating that he has reviewed Elaine Herman’s medical records. (Haber Decl., ¶ 4.) He states that Elaine Herman received five cycles of combination chemotherapy treatments. (Id., ¶ 10.) Herman suffers from abdominal pains, fatigue, weight loss, and other significant symptomatology. (Ibid.) She was also diagnosed with chronic kidney disease Stage III. (Herman Decl., ¶ 3.) Haber concluded there is substantial medical certainty that Herman’s condition will continue to deteriorate, and there is substantial medical doubt of her survival beyond four to six months from the date of his declaration, which was January 20, 2023. (Haber Decl., ¶¶ 6-7.)

In opposition, Defendants argue Haber did not personally treat Herman and based his opinion only on her medical records. (Haber Decl., ¶ 4.) Defendants argue Plaintiffs omitted recent medical records, such as a CT scan taken on January 27, 2023, and medical exam records from September 13, 2022, showing her tumor is not growing. (Karbassi Decl., ¶ 7, Ex. B.) Defendants argue that Herman testified she is still working. Herman’s deposition took place on February 24, 2023, March 2, 2023 and March 3, 2023. She testified she takes care of her 91 year old mother. She continues to work full time in a job that requires her to be active, including walking and shopping and talking her clients out. (Dutton Decl., Ex. A at pp. 11, 117-118, 104.)

With their reply, Plaintiffs filed a declaration from Dr. Carrie A. Redlich who personally evaluated Elaine Herman and reviewed her medical records in March 2023. She concluded that Herman’s condition will continue to deteriorate, and there is substantial medical doubt of her survival beyond six months from March 10, 2023. (Redlich Decl., ¶ 7.) Plaintiffs also filed additional medical diagnostic documentation and a declaration from Herman’s husband stating Herman is tired, has difficulty sleeping, is in pain, and has anxiety.

The court gives Haber’s declaration little weight because he reviewed incomplete medical records and had no interaction with Herman. While Redlich performed a more comprehensive analysis, by filing her declaration with their reply Plaintiffs deprived Defendants of an opportunity to respond to Redlich’s analysis and conclusions. In addition, the evidence that Herman continues to work full time and care for her mother indicates she still has the ability to engage in many day-to-day tasks.

This motion is CONTINUED to April 5, 2023 at 9 a.m. Defendants may file a supplemental opposition of no more than five pages by March 27, 2023. Plaintiffs may file a supplemental reply of no more than three pages by March 30, 2023.

The moving party is to order to give notice.