Judge: Laura A. Seigle, Case: 23STCV01754, Date: 2023-05-16 Tentative Ruling

Case Number: 23STCV01754    Hearing Date: May 16, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR TRIAL PREFERENCE

On January 26, 2023, Plaintiffs Harry M. Ruzgerian and Mary J. Ruzgerian filed this action for personal injury caused by asbestos exposure.  On April 14, 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.)

Plaintiffs submitted evidence that Harry M. Ruzgerian has advanced, Stage IV malignant pleural mesothelioma which has metastasized, and he suffers from chest discomfort, fatigue, and difficulty sleeping.  (Presser Decl., ¶¶ 20; Alluri Decl., ¶¶ 10.)  There are no surgical treatments and his care is palliative.  (Alluri Decl., ¶ 14.)  Dr. Presser and Dr. Ripley concluded that there is substantial medical doubt of his survival beyond six months.  (Presser Decl., ¶ 26; Ripley Decl., ¶ 20.)  Dr. Alluri, his treating oncologist, concluded there is a possibility that he will not survive beyond six months.  (Alluri Decl., ¶ 16.)

Defendants argue that Plaintiffs did not submit clear and convincing evidence of a substantial medical doubt of Ruzgerian’s survival beyond six months.  (Volkswagen’s Opposition, pp. 6-7; ExxonMobil’s Opposition at p. 3.)  Defendants argue he did not seem to have difficulty thinking or communicating during his deposition on April 26-28, 2023.  (Howard Decl., ¶ 2.)  He testified that he has no issues with memory, does not need assistance to walk, can drive, denies pain, is not on supplemental oxygen, and since his surgery in December 2022 he can breathe better, and his coughing has gone away.  (Howard Decl., Ex. B at pp. 154-159.)  He also plans to take a trip to New Mexico in June to see his family.  (Id. at pp. 157-159.)  He drives his grandson to school three days a week and rides a bicycle for about two blocks while watching grandson.  (Winterman Decl., ¶ 10.)

Plaintiff’s testimony he is feeling better now does not negate the evidence that he has metastasized Stage IV cancer with no possibility of a cure, and two doctors have concluded there is substantial medical doubt of his survival beyond six months.  Plaintiffs have shown clear and convincing medical documentation concluding Plaintiff suffers from an illness raising substantial medical doubt of his survival beyond six months and that the interests of justice will be served by granting the preference.

This motion for trial setting preference is GRANTED.  Trial is set for September 11, 2023 at 9 a.m.  The final status conference is August 28, 2023 at 9 a.m.  The parties are to meet and confer on a trial setting order.  The court sets a status conference regarding a trial setting order for May 30, 2023 at 9 a..

The moving party is to give notice.