Judge: Laura A. Seigle, Case: 23STCV15864, Date: 2024-02-01 Tentative Ruling

Case Number: 23STCV15864    Hearing Date: February 1, 2024    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

Plaintiffs David Rosedale and Kimberly Rosedale filed this motion for trial preference under 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.  (Id., § 36, subd. (d).)  Moreover, 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.” (Ibid.)

Plaintiffs submitted evidence that David Rosedale has malignant pleural mesothelioma.  (Motion at p. 3; 11/1/23 Presser Decl. at ¶¶ 6-7.)  Dr. Presser reviewed David Rosedale’s records, had tele-medicine visits with David Rosedale, and continues to be involved in the case.  (1/4/24 Presser Decl., at ¶¶ 1, 4.)  On September 21, 2023, David Rosedale underwent a left thoracotomy, radial pleurectomy, and decortication and developed post-operative atrial fibrillation and persistent air leak.  (Id. at ¶ 3.)  The pathology collection showed the malignant epithelioid mesothelioma had spread to his lymph nodes.  (Ibid.)  David Rosedale is undergoing radiation therapy because pathology from the operation showed unclear margins.  (1/4/24 Presser Decl., at ¶¶ 4.)  David Rosedale suffers from constant fatigue, constant left chest wall and back pain, and nausea.  (Ibid.)  His health will decline and there is substantial medical doubt as to his survival beyond the next four to six months.  (1/4/24 Presser Decl., at ¶¶ 5.)

Defendants argue that Dr. Presser is not David Rosedale’s treating physician and has provided inconsistent opinions regarding David Rosedale’s survival in his two declarations without medical records to substantiate certain claims.  (Paccar’s Opposition at pp. 3-4.)  Dr. Presser’s most recent declaration indicating medical doubt of David Rosedale’ survival beyond four to six months from the original declaration date relies on January 4, 2024’s tele-medicine visit, the spread of the malignant mesothelioma to David Rosedale’s lymph nodes, as well as general knowledge of his medical history.  (Id. at ¶¶ 3-5.)  The more recent declaration also explained the developments since the prior declaration – that Rosedale had surgery and the operation showed unclear margins.  Dr. Presser’s declaration provides sufficient details about David Rosedale’s medical records, condition and prognosis. (Ibid.)

The court finds that there is sufficient evidence to meet the clear and convincing standard for granting this motion.  The interests of justice will be served upon the granting of preference in this case as this would allow David Rosedale to pursue his case while he is able to.

Plaintiffs’ motion for trial setting preference is GRANTED. 

The parties are to meet and confer on a trial setting order.  The trial is scheduled for May 13, 2024 at 9 a.m.  The final status conference is scheduled for May 27, 2024 at 9 a.m.  A status conference regarding the trial setting order is set for February 15, 2024 at 9:00 a.m.

The moving party is to order to give notice.