Judge: Laura A. Seigle, Case: 22STCV38537, Date: 2023-09-15 Tentative Ruling

Case Number: 22STCV38537    Hearing Date: September 15, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

Plaintiffs Jaime Eduardo Chavez Garza and Margarita Beltran Del Rio Madrid filed this action for personal injury caused by asbestos exposure.  Plaintiffs filed this motion for trial preference pursuant to 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 the declaration of Dr. Bustamante Valles, who states that she has been treating Plaintiff and has reviewed his records.  (Bustamante Valles Decl., ¶ 6.)  He was diagnosed in March 2022, had surgery, and has been receiving immunotherapy treatments since May 2022.  (Ibid.)  He is continuing to receive the treatments.  (Ibid.)  He has pain, fatigue, lethargy, shortness of breath, anxiety, fear and depression.  (Id., ¶ 9.)  His health will decline and he will likely die.  (Id., ¶ 10.)  There is substantial medical doubt he will survive beyond six months.  (Id., ¶ 14.)  

Defendants argue the medical records indicate Plaintiff is stable and his health is not worsening. 

The medical records suggest his health is stable.  For example, the medical records for 2023 are consistent.  They say under “Current condition (main signs, symptoms and details of progress” – “Malignant Mesothelioma, and there are no complications.  (See, e.g., Powell Decl., Ex. C, pages 2 and 3 of Feb. 8, 2023 report; pages 2 and 3 of March 1, 2023, April 12, 2023, May 3, 2023, May 24, 2023, and June 14, 2023 reports.)  The discharge instructions say Plaintiff is recommended to engage in “Normal life,” “Walking,” and “Relative rest,” there are no significant findings, clinical problems, or risk factors, and he is “stable.”  (Powell Decl., Ex. C, March 1, 2023, March 22, 2023, and April 12, 2023 Discharge Instructions.)  On May 17, 2023, the patient reported improvement.  (Powell Decl., Ex. C, May 18, 2023 report.)  In sum, throughout 2023 and up through the most recent medical report dated June 14, 2023, the reports are consistent and show little if any change in Plaintiff’s condition. 

The Court finds that Chavez Garza has a substantial interest in the action as a whole.  But Plaintiffs have not shown by clear and convincing evidence that his condition is such that there substantial medical doubt of his survival beyond six months.

The motion is DENIED.  If Plaintiff’s condition changes, Plaintiffs are free to file another motion for trial preference.

The moving party is to give notice.