Case Number: BC701948 Hearing Date: November 27, 2018 Dept: 7

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION FOR PREFERENTIAL TRIAL SETTING; MOTION GRANTED

On April 13, 2018, Plaintiff Loretta Hernandez (“Plaintiff”) filed this action against Defendants Centralize Leasing Corp., Alejandro Portillo Gongora, and Golden State Enterprises for motor vehicle and general negligence relating to an April 22, 2016 automobile accident. Plaintiff moves for trial preference on grounds her health is such that survival beyond six months is doubtful. (Code of Civ. Proc., § 36, subd. (d).

Trial preference may, in the court’s discretion, be granted where “clear and convincing medical documentation . . . concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months . . .” (Code of Civ. Proc., § 36, subd. (d).)

“Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.” (Code of Civ. Proc., § 36, subd. (e).) “[W]hen ruling on a motion for preference in trial setting, the trial court must consider the total picture, including the court’s calendar, dilatory conduct by the plaintiff, prejudice to the defendant in the event of an accelerated trial date, and the likelihood of eventual mandatory dismissal if the request for a preferential trial date is denied.” (Mitchell v. Frank R. Howard Memorial Hospital (1992) 6 Cal.App.4th 1396, 1404.)

“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. 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.” (Code of Civ. Proc., § 36, subd. (f).)

Plaintiff is on the transplant list for advanced liver disease. Her condition continues to adversely progress and participation in trial will be difficult at any time in excess of four months. (Declaration of Shari S. Daneshrad, ¶ 7.) Lawrence R. Miller, M.D., one of Plaintiff’s healthcare providers, examined Plaintiff on October 19, 2018 and states: “It is certainly clear that Ms. Loretta Hernandez is gravely ill. She is on a transplant list for advanced liver disease. She is end-stage hepatic cirrhosis with encephalopathy and has had complications with portal vein thrombosis and recurrent cellulitis in a non-healing leg ulcer. Without a liver transplantation, she may well die within the next several months . . .” (Daneshrad Decl., ¶¶ 6, 7; Exh. A.)

Defendants Golden State Enterprises and Alejandro Portillo Gongora (“Defendants”) oppose this Motion. Defendants’ Evidentiary Objections No. 1 is SUSTAINED and Evidentiary Objections Nos. 2-12 are OVERRULED.

Defendants argue the evidence submitted by Plaintiff is neither admissible nor clear and convincing that Plaintiff’s health is such that survival beyond six months is doubtful. Defendants argue counsel cannot authenticate Plaintiff’s medical records, Dr. Miller’s report is not a declaration, does not provide foundation for his opinions, and does not attest to the truth of its contents under penalty of perjury. Defendants also argue Dr. Miller is a pain management specialist and implies he is not qualified to give such an opinion. Defendants argue their due process rights will be violated if trial preference is granted.

In Reply, Plaintiff argues the court has discretion to grant trial preference under Section 36, subdivision (e) if the interests of justice will be served. Plaintiff also argues she has been diligent in conducting discovery—she has fully complied with discovery requests. However, Defendants have not been diligent—after seeking a two-week extension to provide responses, Defendants provided unverified responses consisting of objections, and despite meet and confer efforts, have not provided further responses. Plaintiff also made herself available for deposition in early November, but Defendants chose to schedule her deposition for November 28.

Having considered the moving, opposition, and reply papers, the Court is satisfied under Section 36, subdivision (e) that the interests of justice will be served by granting preference. Plaintiff’s showing, including the report by Dr. Lawrence and Plaintiff’s records, show that Plaintiff’s health is such that trial preference is necessary to protect her interests in the litigation. Plaintiff has also been diligent in conducting discovery and Defendants will not be prejudiced by this trial preference, as it appears discovery is well underway.

The Motion for trial preference is GRANTED. The current trial date of October 15, 2019 is advanced to this date and continued to March 26, 2019, at 8:30 a.m. in Department 7. The current final status conference date of September 27, 2019 is advanced to this date and continued to March 12, 2019, at 10:00 a.m. in Department 7. All discovery and motion cutoffs will reflect the new trial date.

Moving party to give notice.