Preview
1 KEVIN J. McNAUGHTON, State Bar No. 096578
KATRINA J. VALENCIA-State Bar No. 230931
2 YARON F. DUNKEL-State Bar No. 215873
ELECTRONICALLY
CARPENTER, ROTHANS & DUMONT LLP
3 500 South Grand Avenue, 19th Floor F I L E D
Los Angeles, CA 90071 Superior Court of California,
County of San Francisco
4 (213) 228-0400
(213) 228-0401 (Fax) 10/07/2021
5 kmcnaughton@crdlaw.com; kvalencia@crdlaw.com Clerk of the Court
BY: SANDRA SCHIRO
Deputy Clerk
6 Attorneys for Defendant. CALIFORNIA WATER SERVICE COMPANY
7
8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN FRANCISCO
10
11 MICHAEL O. WALKER, Case No. CGC-18-276696
12 Plaintiffs, (Consolidated with CGC-21-276915)
13 vs. [Assigned to the Hon. Cynthia Ming-Mei Lee,
Dept.: 503]
14 CERTAINTEED CORPORATPON, ET al.
DEFENDANT CALIFORNIA WATER
15 Defendants. SERVICE COMPANY’S OPPOSITION TO
PLAINTIFF’S MOTION FOR TRIAL
16 PREFERENCE AND EXTENDING
DISCOVERY CUTOFF UP TO TRIAL
17
DATE: October 21, 2021
18 TIME: 9:30 a.m.
DEPT: 503
19
MICHAEL O. WALKER, Dates of Filing:
20
Plaintiffs, CGC-18-276696: May 31, 2018)
21 CGC-21-276915: March 10, 2021
vs.
22
WESTBURNE SUPPLY, INC.;
23 CALIFORNIA WATER SERVICE
COMPANY; CHEVRON U.S.A., INC; and
24 DOES 1 through 800, inclusive, as required
by California law on joint and several
25 liability pursuant to California Civil Code
Section 1431.2 enacted by the People of the
26 State of California.
27 Defendants.
28
CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL
PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL
1
TABLE OF CONTENTS
2
Page(s):
3
I. SUMMARY OF PLAINTIFF’S ALLEGATIONS AND STATUS OF DISCOVERY.........1
4
II. SUMMARY OF ARGUMENTS ............................................................................................2
5
III. PLAINTIFF HAS BEEN PREPARING FOR TRIAL SINCE 2018 BUT NAMED
6 CALIFORNIA WATER AS A DEFENDANT ONLY IN MARCH OF 2021. .....................4
7 IV. PLAINTIFFS DID NOT MEET HIS INITIAL BURDEN OF PROOF TO SHOW THAT
TRIAL IS NECESSARY TO PREVENT PREJUDICE WHEN PLAINTIFF DOES NOT
8 SHOW THAT HE WILL NOT BE ABLE TO PARTICIPATE IN TRIAL WELL
BEYOND 120 DAYS, WHERE PLAINTIFF MADE THE SAME MOTION TWO
9 YEARS AGO, AND WHERE PLAINTIFF HAS BEEN CONDUCTING DISCOVERY
FOR THREE YEARS BUT NAMED CALIFORNIA WATER ONLY NOW .....................4
10
V. THE INTERESTS OF JUSTICE WILL NOT BE SERVED AND THE PROCEDURAL
11 DUE PROCESS RIGHTS OF CALIFORNIA WATER S WILL BE IMPAIRED IF THE
MOTION IS GRANTED ........................................................................................................8
12
VI. SHOULD THE COURT BE INCLINED TO GRANT PREFERENCE, TRIAL DATE
13 SHOULD BE NO EARLIER THAN 120 DAYS, MOTIN FOR SUMMARY JUDGMENT
BE HEARD ON 28-DAYS NOTICE, FACT DISCOVERY CONCLUDE 30 DAYS
14 BEFORE TRIAL, AND EXPERT DISCOVERY CONCLUDE 15-DAYS BEFORE
TRIAL. ..................................................................................................................................10
15
VII. CONCLUSION .....................................................................................................................11
16
17
18
19
20
21
22
23
24
25
26
27
28
-i-
TABLE OF CONTENTS
1 TABLE OF AUTHORITIES
Page(s)
2
Cases
3
4 Fox v. Super. Ct.,
21 Cal. App. 5th 529 (2018) .......................................................................................................... 6
5 Lines, Inc. v. San Pedro Peninsula Hosp.,
8 Cal. 4th 100 (1994) .................................................................................................................... 9
6 Miller v. Super. Ct.,
221 Cal. App. 3d 1200 (1990) ....................................................................................................... 9
7
Neary v. Regents of U.C.,
8 3 Cal.4th 273 (1992) .................................................................................................................... 10
Nelson v. Adams USA, Inc.,
9 529 U.S. 460 (2000) ....................................................................................................................... 8
Parlen v. Golden State Sanwa Bank,
10 194 Cal. App.3d 906 (1987) .......................................................................................................... 9
Peters v. Sup.Ct. (County of Los Angeles),
11
212 Cal. App.3d 218 (1989) ...................................................................................................... 8, 9
12 Rice v. Superior Court,
136 Cal.App.3d 81 (1982) ............................................................................................................. 6
13 Roe v. Sup.Ct. (Sheldon),
224 Cal.App.3d 642 (1990) ........................................................................................................... 8
14 Salas v. Sears, Roebuck & Company,
42 Cal. 3d 342 (1986) .................................................................................................................... 9
15
San Bernardino City Unified Sch. Dist. v. Super. Ct.,
16 190 Cal. App. 3d 233 (1987) ......................................................................................................... 9
Swaithes v. Superior Court,
17 212 Cal.App.3d 1082 (1989) ....................................................................................................... 9
18 Statutes
Cal. Civ. Code § 1431.2 ..................................................................................................................... 1
19
20 Cal. Civ.Proc. Code § 36 .......................................................................................................... passim
21
22
23
24
25
26
27
28
-ii-
TABLE OF AUTHORITIES
1 COMES NOW defendant CALIFORNIA WATER SERVICE COMPANY (hereinafter
2 “California Water”) and hereby opposes Plaintiff’s Motion for Preferential Trial Setting Preference
3 under Code of Civil Procedure ("C.C.P.") § 36(a) and motion to extend the discovery cutoff until
4 trial. California Water was named a defendant only in the lawsuit filed on March 10, 2021 (CGC-
5 21-276915), and was not a party to the original 2018 lawsuit (CGC-18-276696) until they lawsuits
6 were consolidated.
7 I. SUMMARY OF PLAINTIFF’S ALLEGATIONS AND STATUS OF DISCOVERY
8 In these two consolidated lawsuits, Plaintiff alleges that he was exposed to asbestos at
9 approximately 34 jobs sites and employers for which Plaintiff worked between 1965 and 1992. [See
10 Exhibit “A” to Declaration of Yaron F. Dunkel (“Dunkel Decl.”)] Plaintiff’s alleged exposure to
11 construction on California Water job sites was in 1978-1979 and 1982. [Ibid. p. 25:3-9.] More than
12 2.5 years ago, on March 14, 2019, Plaintiff already testified (and he and his counsel knew) that
13 Plaintiff worked on transite pipes on construction for California Water’s water mains:
“16 ꞏQ.ꞏ Okay.ꞏ Did you use any transite pipe during that
14 17ꞏ ꞏ work?
15 18ꞏ ꞏ ꞏ ꞏA.ꞏ For California Water?
19ꞏ ꞏ ꞏ ꞏQ.ꞏ Right.
16 20ꞏ ꞏ ꞏ ꞏA.ꞏ Later on they switched over to transite.
21ꞏ ꞏ ꞏ ꞏQ.ꞏ Did you ever have to work with transite pipe in
17 22ꞏ ꞏ any way on a California Water Service job?
23ꞏ ꞏ ꞏ ꞏA.ꞏ Yes, sir.” [Exhibit “B” to Dunkel Decl., p. 635:16-23, Volume 3.]
18
19 Yet, Plaintiff and his counsel made the strategic decision not to sue California Water for
20 another two years, until March 10, 2021 (CGC-21-276915). Plaintiff and his counsel, who benefitted
21 from three years of discovery in 2018 lawsuit that excluded California Water, now want to deprive
22 California Water of reasonable time to prepare for trial, locate witnesses and documents from more
23 than 40 years ago, take depositions of the numerous other defendants he sued and settled with in the
24 2018 lawsuit, and file motion for summary judgment. Yet, Plaintiff, who previously filed a motion
25 in August of 2019 and made the same arguments for need for trial preference two years, does not
26 show that a trial within 120 days is necessary to prevent prejudice to him, especially where he made
27 the same motion 2 years ago yet now admits that he now “am still capable of participating in my
28 trial” despite stating 2 years ago (in August 2019) that he will not be able to do so beyond 120 days.
-1-
CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL
PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL
1 Now, in October of 2021, there is no evidence that Plaintiff will not to be able to participate well
2 beyond 120 days.
3 Despite years of discovery, Plaintiff does not attempt to disclose information to defendants.
4 He now served unverified responses to California Water’s Special Interrogatories and refused to
5 identify his witnesses by name, (except for Allen Brooks, whom Brayton Purcell also represent),
6 instead stating:
7 “Plaintiff identifies persons named in plaintiff’s responses to Standard
8 Asbestos Case Interrogatories and witnesses and co-workers named in
depositions taken in this matter.
9
Witnesses identified in this Response who are listed as “c/o Brayton Purcell”
10 are clients of Brayton Purcell LLP. [Exhibit “C” to Dunkel Decl.,
Responses, p. 5:9-10.]
11
12 As stated below, Plaintiff’s declarations do not show that a trial within 120 days is necessary.
13 Instead, his motion and proposed order is calculated to prejudice California Water by requiring
14 California Water to (1) prepare for trial within 120 days, (2) file motion for summary judgment with
15 75 days-notice, (3) locate and depose the witnesses and entities involved in the 34 jobs sites and
16 employers for which Plaintiff worked between 1965 and 1992 before filing summary judgment, (4)
17 give Plaintiff until eve of trial (or jury selection) to disclose information his counsel obtained in the
18 last 3 years, (5) respond to discovery in 20 days, when Plaintiff had 30-plus days to respond to
19 discovery but still served unverified and generic responses.
20 II. SUMMARY OF ARGUMENTS
21 (1) Plaintiff filed his complaint in May of 2018 but did not sue California Water,
22 although Plaintiff testified that he installed transite pipes on California Water’s water pipe
23 installation projects. (Michael O. Walker v. CertainTeed Corporation, et al, under Case No. CGC-
24 18-276696 (“2018 Case”); See Exhibit “B” to Dunkel Decl., p. 635:16-23.) Plaintiff and his counsel
25 delayed for three years and filed a separate lawsuit against California Water in March of 2021.
26 Michael O. Walker v. Westburne Supply, Inc.; California Water Service Company; Chevron U.S.A.,
27 Inc; And Does 1 through 800, under Case No. CGC-21-276915 (“2021 Case”.) Plaintiffs
28 consolidated the lawsuits on June 17, 2021.
-2-
CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL
PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL
1 (2) Plaintiff motion for preference benefits from his attorney conducting discovery for
2 the last 3 years that excluded California Water. Plaintiff’s motion for trial within 120 days
3 unreasonably prejudices California Water, which has to locate witnesses and documents regarding
4 construction that occurred more than 40 years, in 1978-1979 and 1982. California Water, which
5 answered the Complaint on June 30, 2021, needs reasonable time to prepare for trial and motion for
6 summary judgment regarding events occurring so many years ago.
7 (3) Plaintiff does not show that trial within 120 days is “necessary to prevent prejudicing”
8 Plaintiff, especially where Plaintiff made the same arguments in his August 6, 2019 motion for
9 preference, and yet now in October 2021 admits that “I am still capable of participating in my trial,
10 able to give testimony, undergo cross examination, relate to the Court and jury, and generally assist
11 my counsel at trial.” [Walker’s Decl., ¶10, p. 3:13-15.] The fact that Plaintiff obtained preference
12 two years ago with very similar declarations (see motion of August 6, 2019, and Exhibits “D” and
13 “E” to Dunkel Decl.) and yet, 2 years later Plaintiff admits that he still able to participate in litigation
14 in the next few months, shows that Plaintiff’s symptoms do not necessitate a trial date in next 120
15 days. The evidence presented in support of the current motion is speculative and there is no
16 statement by Plaintiff, his doctor, or his counsel that Mr. Walker’s symptoms are expected to worsen
17 such that he could not participate in trial in 10 or 12 months, or beyond. It is telling that Plaintiff’s
18 motion is not based on CCP §36(d), and does not claim that there’s substantial medical doubt that
19 plaintiff will survive beyond six months.
20 (4) Plaintiff’s motion’s purpose of prejudicing defendants is obvious where Plaintiff’s
21 refuses to shorten time to hear motion for summary judgment. Plaintiff’s proposed order asks that
22 “summary judgment/adjudication motions shall be heard on regular notice”, thereby forcing
23 California Water to complete discovery and serve motions within a few weeks, although Plaintiff
24 and his attorney have had since 2018 to locate witnesses and take depositions.
25 (5) California Water requests that this Court deny the motion and give California Water
26 reasonable time to locate its witnesses and documents and prepare for trial for events occurring over
27 40 years ago. This Court has authority to set a trial date that is fair and reasonable to all parties,
28 especially where Plaintiff does not show that trial within 120 days is necessary.
-3-
CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL
PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL
1 (8) If the Court grants the motion, motion for summary judgment should be filed to be
2 heard up to a week before the trial date, be heard on shortened notice of 28 days before the motion
3 hearing date. Moreover, fact discovery should close 30 days before the trial date and expert
4 discovery should conclude 15 days before the trial date because the parties are entitled to know each
5 other’s facts before trial, and not on the eve of trial when jury is selected.
6 (9) Plaintiff’s motion to shorten time for parties to respond to discovery within 20 days
7 is unfair because Plaintiff already received 30-plus days to respond to discovery, and his proposed
8 20-days is calculated to give California Water minimal time to respond to discovery that Plaintiff
9 has not yet even propounded.
10 III. PLAINTIFF HAS BEEN PREPARING FOR TRIAL SINCE 2018 BUT NAMED
11 CALIFORNIA WATER AS A DEFENDANT ONLY IN MARCH OF 2021.
12 Plaintiff filed his original complaint in May of 2018 (Case No. CGC-18-276696), against
13 multiple defendants, but not California Water. Plaintiff and his counsel have been litigating the 2018
14 Case for three years, with discovery and depositions that excluded California Water. California
15 Water was not given an opportunity to participate in discovery (much less know of this lawsuit)
16 during those three years. This is despite that plaintiff and his counsel knew about California Water
17 since at least Plaintiff’s March 14, 2019 deposition testimony, that Plaintiff believes he installed
18 transite pipes at California Water’s water mains. [Exhibit “B” to Dunkel Decl., p. 635:16-23,
19 Volume 3.] Plaintiff and his attorney had years to name California Water, but delayed until March
20 of 2021 when they filed the 2021 Case. Plaintiffs then consolidated the two lawsuits only on June
21 17, 2021.
22 IV. PLAINTIFFS DID NOT MEET HIS INITIAL BURDEN OF PROOF TO SHOW THAT
23 TRIAL IS NECESSARY TO PREVENT PREJUDICE WHEN PLAINTIFF DOES
24 NOT SHOW THAT HE WILL NOT BE ABLE TO PARTICIPATE IN TRIAL WELL
25 BEYOND 120 DAYS, WHERE PLAINTIFF MADE THE SAME MOTION TWO
26 YEARS AGO, AND WHERE PLAINTIFF HAS BEEN CONDUCTING DISCOVERY
27 FOR THREE YEARS BUT NAMED CALIFORNIA WATER ONLY NOW
28 Plaintiff filed his motion under C.C.P. section 36(a), and has filed the same motion two years
-4-
CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL
PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL
1 ago making the same arguments. If plaintiff met his burden 2 years ago, yet now in October 2021
2 is “still capable of participating in my trial, able to give testimony, undergo cross examination, relate
3 to the Court and jury, and generally assist my counsel at trial” [Walker’s Decl., ¶10, p. 3:13-15],
4 there is much reason to conclude that Plaintiff can proceed to trial in another 12 months or more.
5 Trial preference is available only if it is "necessary" to prevent prejudice to the plaintiff. The
6 Legislature did not intend for every patient over the age of 70 with medical conditions to
7 automatically be granted trial preference, as Plaintiff intend here, as such result would inundate the
8 court with shortened trial schedule, thereby affecting the court's regularly set trial. Rather, the
9 plaintiff must demonstrate necessity. C.C.P. § 36(a) provides:
10 A party to a civil action who is over 70 years of age may petition the
court for a preference, which the court shall grant if the court makes
11 both of the following findings:
12 (1) The party has a substantial interest in the action as a whole.
13 (2) The health of the party is such that a preference is necessary to
prevent prejudicing the party's interest in the litigation.
14
15 In defining the term “necessary” the dictionary states, “absolutely needed”; “indispensable”,
16 and “essential”. [The Merriam-Webster Dictionary of the English Language, https://www.merriam-
17 webster.com/dictionary/necessary]. Plaintiff’s motion does not establish a necessity for trial within
18 120 days (as opposed to 12 months out or beyond), and therefore must be denied.
19 Plaintiff relies on his and his doctor’s declarations, but both offer general statements that Mr.
20 Walker has been experiencing symptoms for almost 2 years, since at least August 2019, that have
21 gradually worsened in these 2 years. There is no statement that shows that Mr. Walker would not
22 be able to participate if trial is set in next 12 months or beyond. In fact, Mr. Walker, his doctor and
23 his attorney made the same statements two years ago, and yet Plaintiff is now still able to participate
24 in trial (as he readily admits in his September 17, 2021 declaration, paragraph 10. At most, Mr.
25 Walker speculates that he “may not be able” to participate in trial later [Walker, p. 2:18-19], but
26 neither he nor his nephrologist offer any evidence and medical opinion that Mr. Walker would not
27 be able to participate in the months ahead, especially where Plaintiff has experienced these
28 symptoms for the last 2 years, previously made the same arguments 2 years ago, and his declarations
-5-
CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL
PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL
1 show that his symptoms are gradual.
2 Plaintiff Walker’s declarations are very different from the facts presented in Fox v. Super.
3 Ct. (2018) 21 Cal. App. 5th 529, where the evidence was that the plaintiff’s mental state had
4 “deteriorated to a point where she becomes confused and forgetful,” and determined that there was
5 “good reason for concern” that plaintiff would not be able to participate in a trial “for much longer
6 as her health deteriorates.” (Id. at 535.) The Court found that the plaintiff’s forgetfulness was
7 “critically” important for its ruling. (Ibid.) In Fox, the plaintiff was an 81-year-old woman suffering
8 from stage IV lung cancer that was resistant to chemotherapy that had metastasized to her femur,
9 clavicle, and spine; that she suffered from asbestosis, asbestos-related pleural disease, severe
10 coronary disease, and anemia; that she was receiving chemotherapy with severe side effects; and
11 that she suffered from “whole body aches and pains, severe abdominal and bowel complications,
12 nausea and vomiting, dehydration, drowsiness, extreme weakness and fatigue.” (Id. at 531-32.)
13 Plaintiff also cited to Rice, in which an 80-year old plaintiff “suffered severe brain injury”, was in
14 the hospital at the time of the motion, and “condition had worsened substantially and would not
15 allow her to be moved from the hospital for approximately 10 days.” (Rice v. Superior Court (1982)
16 136 Cal.App.3d 81, 85.) In fact, the motion represented that Plaintiff was in “vegetative state”. (Id.
17 at 89.) Rice, just as Fox, show that Plaintiff must appear to be unable to participate in litigation in
18 the near future and it is necessary to have trial within 120 days. Those are not the facts in this case.
19 Plaintiff also cites to Looney, but Looney involved a motion “for a trial preference pursuant to
20 section 36, subdivisions (d) and (e)”, not subdivision (a), as Plaintiff has cited here. Plaintiff cited
21 no case law in which preference was granted simply because Plaintiff was over 70 years old and had
22 medical conditions that would affect his health gradually over time.
23 In this case, Plaintiff does not declare that his mental capacity is such that a trial within 120
24 days is a necessity, facts that were critical for the ruling in Fox. Mr. Walker declares that “my short-
25 tern memory continues to decline as time passes” [Walker Decl. p.2:20-21, emphasis added], which
26 is so generic that it is a true statement for many people getting older. He declares that he experiences
27 fatigue and shortness of breath that limit his ability to concentrate and “remain in the moment”, but
28 these issues can (and frequently are) alleviated by giving plaintiff rest between depositions; they do
-6-
CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL
PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL
1 not show that Plaintiff is lacking capacity or that his condition will deteriorate sharply in the next
2 few months. There is no evidence that Plaintiff’s symptoms would be worse in 8, 10 or 12 months
3 such that a trial within 120 days is a necessity to prevent prejudice. In fact, Plaintiff declares that
4 his “difficulties [existed] and have worsened since August 2019” [Walker Decl. p.2:20-21], which
5 shows that he has been experiencing these symptoms for the last 2 years, but did not seek a trial
6 preference earlier. Instead, Plaintiff spent the last 2-3 years to prepare for trial without naming
7 California Water as a defendant until 2021, and now uses the preference statute as a sword.
8 The declaration of Plaintiff’s nephrologist, Dr. Perham Mokri, also does not provide any
9 more facts about Mr. Walker’s ability to participate in litigation for the next 10 or 12 months, or
10 even beyond. It is telling that Plaintiff’s is not claiming that there is a “substantial medical doubt of
11 survival… beyond six months”, which (coupled by the fact that they obtained a doctor’s declaration),
12 indicates that Plaintiff cannot not satisfy the burden of C.C.P. 36(d), and Plaintiff is expected to live
13 much longer than 6 months despite his end stage or stage 6 chronic kidney disease. Dr. Mokri offers
14 no opinions about Plaintiff’s life expectancy or that his Plaintiff would lack memory or concentration
15 if trial were set 8 or 12 months out. Dr. Mokri offers no opinions about plaintiff’s asbestos disease
16 or mesothelioma, and while he describes “common symptoms” of plaintiff’s kidney disease (i.e.,
17 loss of appetite or lower quality of life, weakness and fatigue, hypertension, and decreased mental
18 sharpness”), Dr. Mokri offers no opinion about these symptoms in Plaintiff. [Mokri, p. 2:18-19].
19 Dr. Mokri only states that Plaintiff “experiences some of these symptoms”, without describing them
20 in Plaintiff or compare to his experience with similarly-situated patients. [Mokri, p. 2:18-19].
21 Ultimately, the issue for Plaintiff’s motion is not whether Plaintiff has kidney disease and side effects
22 to treatment, but rather whether trial preference is “necessary” (i.e., absolutely needed or essential)
23 to prevent prejudice.
24 The declaration of Plaintiff’s counsel – which was the same declaration made 2 years ago,
25 do not show that Mr. Walker’s condition has changed in the last years such that trial within 120 is a
26 necessity. Plaintiff made the same claim of necessity two years ago, and yet it is undisputed that
27 two years later Mr. Walker is “still capable of participating in my trial, able to give testimony,
28 undergo cross examination, relate to the Court and jury, and generally assist my counsel at trial.”
-7-
CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL
PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL
1 [Walker’s Decl., ¶10, p. 3:13-15.] If Mr. Walker believed 2 years ago that trial preference was a
2 necessity yet two years later is still able to participate, it is apparent that there is no necessity for trial
3 preference. California Water is simply asking for a reasonable trial date that would allow it to
4 conduct discovery for events occurring over 40 years ago, have reasonable time to file a motion for
5 summary judgment, and have a reasonable time to prepare for trial.
6 The declarations in support of Plaintiff’s motion are conclusory and fail to provide what, if
7 any, impact Mr. Walker’s kidney disease have on her ability to participate in litigation in the future
8 such that trial preference within 120 days is necessary to prevent prejudice, especially where Plaintiff
9 made the same motion two years ago. There is simply no showing that Mr. Walker would not be
10 able to participate in litigation another 10, 12 months or beyond, especially where his symptoms
11 have been ongoing for 2 years, where Dr. Mokri’s declares that his treatment is to slow the
12 progression of the kidney disease, and where the declaration offer no specifics that would allow this
13 Court to conclude that Plaintiff will not be able to participate more than 120 days out.
14 V. THE INTERESTS OF JUSTICE WILL NOT BE SERVED AND THE
15 PROCEDURAL DUE PROCESS RIGHTS OF CALIFORNIA WATER S WILL BE
16 IMPAIRED IF THE MOTION IS GRANTED
17 Not only is there no necessity for trial within 120 days, but this court has discretion to deny
18 even a "mandatory" preferential trial setting where defendants’ due process rights are violated.
19 (Peters v. Sup.Ct. (County of Los Angeles) (1989) 212 Cal. App.3d 218, 227; Roe v. Sup.Ct.
20 (Sheldon) (1990) 224 Cal.App.3d 642, fn. 2.) Here, granting an expedited preference trial at this
21 time would strip California Water of its due process rights to adequately prepare for trial, whereas
22 Plaintiff has had 3 years to prepare for trial, Plaintiff is giving California Water only a few months
23 to locate witnesses for events occurring more than 40 years ago. Where Plaintiff’s opportunity for
24 exposure to asbestos was numerous, as shown by the approximate 34 jobs sites and employers for
25 which Plaintiff worked between 1965 and 1992 and claims exposure to asbestos, California Water
26 must have “an adequate opportunity to defend against the imposition of liability.” (Nelson v. Adams
27 USA, Inc. (2000) 529 U.S. 460, 466, 469 (finding a due process violation where defendant was
28 denied the “time and opportunity to respond to the claim” against it.) The defendant’s “opportunity
-8-
CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL
PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL
1 to defend” itself in a lawsuit is an “indispensable” element of due process.” (W.S.S. Lines, Inc. v.
2 San Pedro Peninsula Hosp. (1994) 8 Cal. 4th 100, 118).
3 California Water must receive an adequate opportunity to prepare for trial and conduct
4 sufficient discovery. (San Bernardino City Unified Sch. Dist. v. Super. Ct. (1987) 190 Cal. App. 3d
5 233, 240, affirming trial court's denial of request to set trial within 90 days in part because “some
6 degree of prejudice would have resulted merely because of the relatively short period of time in
7 which to actually prepare for trial”). There are “strong countervailing considerations” arising from
8 basic concerns about “fairness and due process” when considering motions for trial preference.
9 (Miller v. Super. Ct. (1990) 221 Cal. App. 3d 1200, 1206, acknowledging “strong countervailing
10 considerations—deriving from principles of efficient trial court management; from fairness and due
11 process to other litigants; and from divergent public policy or statutory contexts in which the section
12 36(a) mandate may be difficult, impractical, or impossible to realize”.) Therefore, defendants must
13 be given adequate time to prepare for trial no matter the technical limits of CCP § 36(a). (Peters,
14 supra, 212 Cal. App. 3d at 227, recognizing due process implications for granting a CCP § 36 motion
15 when defendant would not have adequate time to prepare for trial). “In deciding whether to grant a
16 preferential trial date, the trial court must consider the totality of the circumstances.” (Parlen v.
17 Golden State Sanwa Bank (1987) 194 Cal. App.3d 906, 912, citing Salas v. Sears, Roebuck &
18 Company (1986) 42 Cal. 3d 342, 344, holding that a trial court “must consider the ‘total picture,’ ...
19 including the condition of the court calendar, dilatory conduct by plaintiff, prejudice to defendant of
20 an accelerated trial date, and the likelihood of eventual mandatory dismissal if the early trial date is
21 denied.”) A preferential trial date will severely prejudice defendants. Accordingly, the Court should
22 weigh these interests in deciding whether to set a trial date and, at a minimum, in making such orders
23 to reasonably shorten discovery and dispositive motions. (Swaithes v. Superior Court (1989) 212
24 Cal.App.3d 1082.)
25 Here, the prejudice to California Water is especially substantial and unfair, compounded by
26 the unreasonable terms inserted in Plaintiff’s proposed Order. Here, Plaintiff has been litigating this
27 lawsuit since August of 2018, but did not name California Water until the 2021 Case. In other words,
28 Plaintiff has been able to conduct and benefits from discovery for the last 3 years, but is giving
-9-
CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL
PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL
1 California Water only months to prepare for trial. This is especially unfair where Plaintiff testified
2 2.5 years ago, on March 14, 2019, that he knew he installed transite pipes on California Water water
3 mains [Exhibit “C” to Dunkel Decl.] yet stilldid not name California Water as a defendant until
4 2021 (long after other defendants have already been dismissed.) This Court should consider that
5 Plaintiff made the same motion for trial preference 2 years ago, now admits that he still is able to
6 participate in trial (despite claiming otherwise 2 years ago), that Plaintiff delayed naming California
7 Water, and that Plaintiff benefits from substantially unequal time he has been litigation this case
8 while giving only a few months to California Water to prepare for trial.
9 Plaintiff’s proposed Order demonstrates Plaintiff’s intention to prejudice California Water.
10 He demands trial within 120 days, yet demands that California Water give 75 days-notice to file
11 summary judgment. He received 30 days to respond to discovery but demands that California Water
12 respond to discovery within 20 days. He has had 3 years to conduct discovery but wants to keep
13 discovery open until the eve of trial – and even up to jury selection thereby keeping his facts a
14 moving target. Moreover, the only person he identified as a witness by name, “Allen Brooks”, is
15 now represented by Brayton Purcell thereby ensuring that Plaintiff and his counsel are the
16 gatekeepers to evidence. [See Exhibit “C” to Dunkel Decl. p. 5:9, and 5:11-12. Identifying Allen
17 Brooks as their “clients of Brayton Purcell”.] Therefore, this Court should look at the totality of the
18 evidence, and find that not only is there no necessity for trial within 120 days, but that Plaintiff’s
19 motion was made before and yet plaintiff is still able to participate in trial 2 years later, and that the
20 motion unfairly prejudices California Water.
21 VI. SHOULD THE COURT BE INCLINED TO GRANT PREFERENCE, TRIAL DATE
22 SHOULD BE NO EARLIER THAN 120 DAYS, MOTIN FOR SUMMARY
23 JUDGMENT BE HEARD ON 28-DAYS NOTICE, FACT DISCOVERY CONCLUDE
24 30 DAYS BEFORE TRIAL, AND EXPERT DISCOVERY CONCLUDE 15-DAYS
25 BEFORE TRIAL.
26 Trial courts generally have the power to do whatever is necessary and appropriate, in the
27 absence of controlling legislation, to ensure the prompt, fair and orderly administration of justice.
28 (Neary v.
Preview
1 KEVIN J. McNAUGHTON, State Bar No. 096578 KATRINA J. VALENCIA-State Bar No. 230931 2 YARON F. DUNKEL-State Bar No. 215873 ELECTRONICALLY CARPENTER, ROTHANS & DUMONT LLP 3 500 South Grand Avenue, 19th Floor F I L E D Los Angeles, CA 90071 Superior Court of California, County of San Francisco 4 (213) 228-0400 (213) 228-0401 (Fax) 10/07/2021 5 kmcnaughton@crdlaw.com; kvalencia@crdlaw.com Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk 6 Attorneys for Defendant. CALIFORNIA WATER SERVICE COMPANY 7 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 11 MICHAEL O. WALKER, Case No. CGC-18-276696 12 Plaintiffs, (Consolidated with CGC-21-276915) 13 vs. [Assigned to the Hon. Cynthia Ming-Mei Lee, Dept.: 503] 14 CERTAINTEED CORPORATPON, ET al. DEFENDANT CALIFORNIA WATER 15 Defendants. SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL 16 PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL 17 DATE: October 21, 2021 18 TIME: 9:30 a.m. DEPT: 503 19 MICHAEL O. WALKER, Dates of Filing: 20 Plaintiffs, CGC-18-276696: May 31, 2018) 21 CGC-21-276915: March 10, 2021 vs. 22 WESTBURNE SUPPLY, INC.; 23 CALIFORNIA WATER SERVICE COMPANY; CHEVRON U.S.A., INC; and 24 DOES 1 through 800, inclusive, as required by California law on joint and several 25 liability pursuant to California Civil Code Section 1431.2 enacted by the People of the 26 State of California. 27 Defendants. 28 CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL 1 TABLE OF CONTENTS 2 Page(s): 3 I. SUMMARY OF PLAINTIFF’S ALLEGATIONS AND STATUS OF DISCOVERY.........1 4 II. SUMMARY OF ARGUMENTS ............................................................................................2 5 III. PLAINTIFF HAS BEEN PREPARING FOR TRIAL SINCE 2018 BUT NAMED 6 CALIFORNIA WATER AS A DEFENDANT ONLY IN MARCH OF 2021. .....................4 7 IV. PLAINTIFFS DID NOT MEET HIS INITIAL BURDEN OF PROOF TO SHOW THAT TRIAL IS NECESSARY TO PREVENT PREJUDICE WHEN PLAINTIFF DOES NOT 8 SHOW THAT HE WILL NOT BE ABLE TO PARTICIPATE IN TRIAL WELL BEYOND 120 DAYS, WHERE PLAINTIFF MADE THE SAME MOTION TWO 9 YEARS AGO, AND WHERE PLAINTIFF HAS BEEN CONDUCTING DISCOVERY FOR THREE YEARS BUT NAMED CALIFORNIA WATER ONLY NOW .....................4 10 V. THE INTERESTS OF JUSTICE WILL NOT BE SERVED AND THE PROCEDURAL 11 DUE PROCESS RIGHTS OF CALIFORNIA WATER S WILL BE IMPAIRED IF THE MOTION IS GRANTED ........................................................................................................8 12 VI. SHOULD THE COURT BE INCLINED TO GRANT PREFERENCE, TRIAL DATE 13 SHOULD BE NO EARLIER THAN 120 DAYS, MOTIN FOR SUMMARY JUDGMENT BE HEARD ON 28-DAYS NOTICE, FACT DISCOVERY CONCLUDE 30 DAYS 14 BEFORE TRIAL, AND EXPERT DISCOVERY CONCLUDE 15-DAYS BEFORE TRIAL. ..................................................................................................................................10 15 VII. CONCLUSION .....................................................................................................................11 16 17 18 19 20 21 22 23 24 25 26 27 28 -i- TABLE OF CONTENTS 1 TABLE OF AUTHORITIES Page(s) 2 Cases 3 4 Fox v. Super. Ct., 21 Cal. App. 5th 529 (2018) .......................................................................................................... 6 5 Lines, Inc. v. San Pedro Peninsula Hosp., 8 Cal. 4th 100 (1994) .................................................................................................................... 9 6 Miller v. Super. Ct., 221 Cal. App. 3d 1200 (1990) ....................................................................................................... 9 7 Neary v. Regents of U.C., 8 3 Cal.4th 273 (1992) .................................................................................................................... 10 Nelson v. Adams USA, Inc., 9 529 U.S. 460 (2000) ....................................................................................................................... 8 Parlen v. Golden State Sanwa Bank, 10 194 Cal. App.3d 906 (1987) .......................................................................................................... 9 Peters v. Sup.Ct. (County of Los Angeles), 11 212 Cal. App.3d 218 (1989) ...................................................................................................... 8, 9 12 Rice v. Superior Court, 136 Cal.App.3d 81 (1982) ............................................................................................................. 6 13 Roe v. Sup.Ct. (Sheldon), 224 Cal.App.3d 642 (1990) ........................................................................................................... 8 14 Salas v. Sears, Roebuck & Company, 42 Cal. 3d 342 (1986) .................................................................................................................... 9 15 San Bernardino City Unified Sch. Dist. v. Super. Ct., 16 190 Cal. App. 3d 233 (1987) ......................................................................................................... 9 Swaithes v. Superior Court, 17 212 Cal.App.3d 1082 (1989) ....................................................................................................... 9 18 Statutes Cal. Civ. Code § 1431.2 ..................................................................................................................... 1 19 20 Cal. Civ.Proc. Code § 36 .......................................................................................................... passim 21 22 23 24 25 26 27 28 -ii- TABLE OF AUTHORITIES 1 COMES NOW defendant CALIFORNIA WATER SERVICE COMPANY (hereinafter 2 “California Water”) and hereby opposes Plaintiff’s Motion for Preferential Trial Setting Preference 3 under Code of Civil Procedure ("C.C.P.") § 36(a) and motion to extend the discovery cutoff until 4 trial. California Water was named a defendant only in the lawsuit filed on March 10, 2021 (CGC- 5 21-276915), and was not a party to the original 2018 lawsuit (CGC-18-276696) until they lawsuits 6 were consolidated. 7 I. SUMMARY OF PLAINTIFF’S ALLEGATIONS AND STATUS OF DISCOVERY 8 In these two consolidated lawsuits, Plaintiff alleges that he was exposed to asbestos at 9 approximately 34 jobs sites and employers for which Plaintiff worked between 1965 and 1992. [See 10 Exhibit “A” to Declaration of Yaron F. Dunkel (“Dunkel Decl.”)] Plaintiff’s alleged exposure to 11 construction on California Water job sites was in 1978-1979 and 1982. [Ibid. p. 25:3-9.] More than 12 2.5 years ago, on March 14, 2019, Plaintiff already testified (and he and his counsel knew) that 13 Plaintiff worked on transite pipes on construction for California Water’s water mains: “16 ꞏQ.ꞏ Okay.ꞏ Did you use any transite pipe during that 14 17ꞏ ꞏ work? 15 18ꞏ ꞏ ꞏ ꞏA.ꞏ For California Water? 19ꞏ ꞏ ꞏ ꞏQ.ꞏ Right. 16 20ꞏ ꞏ ꞏ ꞏA.ꞏ Later on they switched over to transite. 21ꞏ ꞏ ꞏ ꞏQ.ꞏ Did you ever have to work with transite pipe in 17 22ꞏ ꞏ any way on a California Water Service job? 23ꞏ ꞏ ꞏ ꞏA.ꞏ Yes, sir.” [Exhibit “B” to Dunkel Decl., p. 635:16-23, Volume 3.] 18 19 Yet, Plaintiff and his counsel made the strategic decision not to sue California Water for 20 another two years, until March 10, 2021 (CGC-21-276915). Plaintiff and his counsel, who benefitted 21 from three years of discovery in 2018 lawsuit that excluded California Water, now want to deprive 22 California Water of reasonable time to prepare for trial, locate witnesses and documents from more 23 than 40 years ago, take depositions of the numerous other defendants he sued and settled with in the 24 2018 lawsuit, and file motion for summary judgment. Yet, Plaintiff, who previously filed a motion 25 in August of 2019 and made the same arguments for need for trial preference two years, does not 26 show that a trial within 120 days is necessary to prevent prejudice to him, especially where he made 27 the same motion 2 years ago yet now admits that he now “am still capable of participating in my 28 trial” despite stating 2 years ago (in August 2019) that he will not be able to do so beyond 120 days. -1- CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL 1 Now, in October of 2021, there is no evidence that Plaintiff will not to be able to participate well 2 beyond 120 days. 3 Despite years of discovery, Plaintiff does not attempt to disclose information to defendants. 4 He now served unverified responses to California Water’s Special Interrogatories and refused to 5 identify his witnesses by name, (except for Allen Brooks, whom Brayton Purcell also represent), 6 instead stating: 7 “Plaintiff identifies persons named in plaintiff’s responses to Standard 8 Asbestos Case Interrogatories and witnesses and co-workers named in depositions taken in this matter. 9 Witnesses identified in this Response who are listed as “c/o Brayton Purcell” 10 are clients of Brayton Purcell LLP. [Exhibit “C” to Dunkel Decl., Responses, p. 5:9-10.] 11 12 As stated below, Plaintiff’s declarations do not show that a trial within 120 days is necessary. 13 Instead, his motion and proposed order is calculated to prejudice California Water by requiring 14 California Water to (1) prepare for trial within 120 days, (2) file motion for summary judgment with 15 75 days-notice, (3) locate and depose the witnesses and entities involved in the 34 jobs sites and 16 employers for which Plaintiff worked between 1965 and 1992 before filing summary judgment, (4) 17 give Plaintiff until eve of trial (or jury selection) to disclose information his counsel obtained in the 18 last 3 years, (5) respond to discovery in 20 days, when Plaintiff had 30-plus days to respond to 19 discovery but still served unverified and generic responses. 20 II. SUMMARY OF ARGUMENTS 21 (1) Plaintiff filed his complaint in May of 2018 but did not sue California Water, 22 although Plaintiff testified that he installed transite pipes on California Water’s water pipe 23 installation projects. (Michael O. Walker v. CertainTeed Corporation, et al, under Case No. CGC- 24 18-276696 (“2018 Case”); See Exhibit “B” to Dunkel Decl., p. 635:16-23.) Plaintiff and his counsel 25 delayed for three years and filed a separate lawsuit against California Water in March of 2021. 26 Michael O. Walker v. Westburne Supply, Inc.; California Water Service Company; Chevron U.S.A., 27 Inc; And Does 1 through 800, under Case No. CGC-21-276915 (“2021 Case”.) Plaintiffs 28 consolidated the lawsuits on June 17, 2021. -2- CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL 1 (2) Plaintiff motion for preference benefits from his attorney conducting discovery for 2 the last 3 years that excluded California Water. Plaintiff’s motion for trial within 120 days 3 unreasonably prejudices California Water, which has to locate witnesses and documents regarding 4 construction that occurred more than 40 years, in 1978-1979 and 1982. California Water, which 5 answered the Complaint on June 30, 2021, needs reasonable time to prepare for trial and motion for 6 summary judgment regarding events occurring so many years ago. 7 (3) Plaintiff does not show that trial within 120 days is “necessary to prevent prejudicing” 8 Plaintiff, especially where Plaintiff made the same arguments in his August 6, 2019 motion for 9 preference, and yet now in October 2021 admits that “I am still capable of participating in my trial, 10 able to give testimony, undergo cross examination, relate to the Court and jury, and generally assist 11 my counsel at trial.” [Walker’s Decl., ¶10, p. 3:13-15.] The fact that Plaintiff obtained preference 12 two years ago with very similar declarations (see motion of August 6, 2019, and Exhibits “D” and 13 “E” to Dunkel Decl.) and yet, 2 years later Plaintiff admits that he still able to participate in litigation 14 in the next few months, shows that Plaintiff’s symptoms do not necessitate a trial date in next 120 15 days. The evidence presented in support of the current motion is speculative and there is no 16 statement by Plaintiff, his doctor, or his counsel that Mr. Walker’s symptoms are expected to worsen 17 such that he could not participate in trial in 10 or 12 months, or beyond. It is telling that Plaintiff’s 18 motion is not based on CCP §36(d), and does not claim that there’s substantial medical doubt that 19 plaintiff will survive beyond six months. 20 (4) Plaintiff’s motion’s purpose of prejudicing defendants is obvious where Plaintiff’s 21 refuses to shorten time to hear motion for summary judgment. Plaintiff’s proposed order asks that 22 “summary judgment/adjudication motions shall be heard on regular notice”, thereby forcing 23 California Water to complete discovery and serve motions within a few weeks, although Plaintiff 24 and his attorney have had since 2018 to locate witnesses and take depositions. 25 (5) California Water requests that this Court deny the motion and give California Water 26 reasonable time to locate its witnesses and documents and prepare for trial for events occurring over 27 40 years ago. This Court has authority to set a trial date that is fair and reasonable to all parties, 28 especially where Plaintiff does not show that trial within 120 days is necessary. -3- CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL 1 (8) If the Court grants the motion, motion for summary judgment should be filed to be 2 heard up to a week before the trial date, be heard on shortened notice of 28 days before the motion 3 hearing date. Moreover, fact discovery should close 30 days before the trial date and expert 4 discovery should conclude 15 days before the trial date because the parties are entitled to know each 5 other’s facts before trial, and not on the eve of trial when jury is selected. 6 (9) Plaintiff’s motion to shorten time for parties to respond to discovery within 20 days 7 is unfair because Plaintiff already received 30-plus days to respond to discovery, and his proposed 8 20-days is calculated to give California Water minimal time to respond to discovery that Plaintiff 9 has not yet even propounded. 10 III. PLAINTIFF HAS BEEN PREPARING FOR TRIAL SINCE 2018 BUT NAMED 11 CALIFORNIA WATER AS A DEFENDANT ONLY IN MARCH OF 2021. 12 Plaintiff filed his original complaint in May of 2018 (Case No. CGC-18-276696), against 13 multiple defendants, but not California Water. Plaintiff and his counsel have been litigating the 2018 14 Case for three years, with discovery and depositions that excluded California Water. California 15 Water was not given an opportunity to participate in discovery (much less know of this lawsuit) 16 during those three years. This is despite that plaintiff and his counsel knew about California Water 17 since at least Plaintiff’s March 14, 2019 deposition testimony, that Plaintiff believes he installed 18 transite pipes at California Water’s water mains. [Exhibit “B” to Dunkel Decl., p. 635:16-23, 19 Volume 3.] Plaintiff and his attorney had years to name California Water, but delayed until March 20 of 2021 when they filed the 2021 Case. Plaintiffs then consolidated the two lawsuits only on June 21 17, 2021. 22 IV. PLAINTIFFS DID NOT MEET HIS INITIAL BURDEN OF PROOF TO SHOW THAT 23 TRIAL IS NECESSARY TO PREVENT PREJUDICE WHEN PLAINTIFF DOES 24 NOT SHOW THAT HE WILL NOT BE ABLE TO PARTICIPATE IN TRIAL WELL 25 BEYOND 120 DAYS, WHERE PLAINTIFF MADE THE SAME MOTION TWO 26 YEARS AGO, AND WHERE PLAINTIFF HAS BEEN CONDUCTING DISCOVERY 27 FOR THREE YEARS BUT NAMED CALIFORNIA WATER ONLY NOW 28 Plaintiff filed his motion under C.C.P. section 36(a), and has filed the same motion two years -4- CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL 1 ago making the same arguments. If plaintiff met his burden 2 years ago, yet now in October 2021 2 is “still capable of participating in my trial, able to give testimony, undergo cross examination, relate 3 to the Court and jury, and generally assist my counsel at trial” [Walker’s Decl., ¶10, p. 3:13-15], 4 there is much reason to conclude that Plaintiff can proceed to trial in another 12 months or more. 5 Trial preference is available only if it is "necessary" to prevent prejudice to the plaintiff. The 6 Legislature did not intend for every patient over the age of 70 with medical conditions to 7 automatically be granted trial preference, as Plaintiff intend here, as such result would inundate the 8 court with shortened trial schedule, thereby affecting the court's regularly set trial. Rather, the 9 plaintiff must demonstrate necessity. C.C.P. § 36(a) provides: 10 A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes 11 both of the following findings: 12 (1) The party has a substantial interest in the action as a whole. 13 (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. 14 15 In defining the term “necessary” the dictionary states, “absolutely needed”; “indispensable”, 16 and “essential”. [The Merriam-Webster Dictionary of the English Language, https://www.merriam- 17 webster.com/dictionary/necessary]. Plaintiff’s motion does not establish a necessity for trial within 18 120 days (as opposed to 12 months out or beyond), and therefore must be denied. 19 Plaintiff relies on his and his doctor’s declarations, but both offer general statements that Mr. 20 Walker has been experiencing symptoms for almost 2 years, since at least August 2019, that have 21 gradually worsened in these 2 years. There is no statement that shows that Mr. Walker would not 22 be able to participate if trial is set in next 12 months or beyond. In fact, Mr. Walker, his doctor and 23 his attorney made the same statements two years ago, and yet Plaintiff is now still able to participate 24 in trial (as he readily admits in his September 17, 2021 declaration, paragraph 10. At most, Mr. 25 Walker speculates that he “may not be able” to participate in trial later [Walker, p. 2:18-19], but 26 neither he nor his nephrologist offer any evidence and medical opinion that Mr. Walker would not 27 be able to participate in the months ahead, especially where Plaintiff has experienced these 28 symptoms for the last 2 years, previously made the same arguments 2 years ago, and his declarations -5- CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL 1 show that his symptoms are gradual. 2 Plaintiff Walker’s declarations are very different from the facts presented in Fox v. Super. 3 Ct. (2018) 21 Cal. App. 5th 529, where the evidence was that the plaintiff’s mental state had 4 “deteriorated to a point where she becomes confused and forgetful,” and determined that there was 5 “good reason for concern” that plaintiff would not be able to participate in a trial “for much longer 6 as her health deteriorates.” (Id. at 535.) The Court found that the plaintiff’s forgetfulness was 7 “critically” important for its ruling. (Ibid.) In Fox, the plaintiff was an 81-year-old woman suffering 8 from stage IV lung cancer that was resistant to chemotherapy that had metastasized to her femur, 9 clavicle, and spine; that she suffered from asbestosis, asbestos-related pleural disease, severe 10 coronary disease, and anemia; that she was receiving chemotherapy with severe side effects; and 11 that she suffered from “whole body aches and pains, severe abdominal and bowel complications, 12 nausea and vomiting, dehydration, drowsiness, extreme weakness and fatigue.” (Id. at 531-32.) 13 Plaintiff also cited to Rice, in which an 80-year old plaintiff “suffered severe brain injury”, was in 14 the hospital at the time of the motion, and “condition had worsened substantially and would not 15 allow her to be moved from the hospital for approximately 10 days.” (Rice v. Superior Court (1982) 16 136 Cal.App.3d 81, 85.) In fact, the motion represented that Plaintiff was in “vegetative state”. (Id. 17 at 89.) Rice, just as Fox, show that Plaintiff must appear to be unable to participate in litigation in 18 the near future and it is necessary to have trial within 120 days. Those are not the facts in this case. 19 Plaintiff also cites to Looney, but Looney involved a motion “for a trial preference pursuant to 20 section 36, subdivisions (d) and (e)”, not subdivision (a), as Plaintiff has cited here. Plaintiff cited 21 no case law in which preference was granted simply because Plaintiff was over 70 years old and had 22 medical conditions that would affect his health gradually over time. 23 In this case, Plaintiff does not declare that his mental capacity is such that a trial within 120 24 days is a necessity, facts that were critical for the ruling in Fox. Mr. Walker declares that “my short- 25 tern memory continues to decline as time passes” [Walker Decl. p.2:20-21, emphasis added], which 26 is so generic that it is a true statement for many people getting older. He declares that he experiences 27 fatigue and shortness of breath that limit his ability to concentrate and “remain in the moment”, but 28 these issues can (and frequently are) alleviated by giving plaintiff rest between depositions; they do -6- CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL 1 not show that Plaintiff is lacking capacity or that his condition will deteriorate sharply in the next 2 few months. There is no evidence that Plaintiff’s symptoms would be worse in 8, 10 or 12 months 3 such that a trial within 120 days is a necessity to prevent prejudice. In fact, Plaintiff declares that 4 his “difficulties [existed] and have worsened since August 2019” [Walker Decl. p.2:20-21], which 5 shows that he has been experiencing these symptoms for the last 2 years, but did not seek a trial 6 preference earlier. Instead, Plaintiff spent the last 2-3 years to prepare for trial without naming 7 California Water as a defendant until 2021, and now uses the preference statute as a sword. 8 The declaration of Plaintiff’s nephrologist, Dr. Perham Mokri, also does not provide any 9 more facts about Mr. Walker’s ability to participate in litigation for the next 10 or 12 months, or 10 even beyond. It is telling that Plaintiff’s is not claiming that there is a “substantial medical doubt of 11 survival… beyond six months”, which (coupled by the fact that they obtained a doctor’s declaration), 12 indicates that Plaintiff cannot not satisfy the burden of C.C.P. 36(d), and Plaintiff is expected to live 13 much longer than 6 months despite his end stage or stage 6 chronic kidney disease. Dr. Mokri offers 14 no opinions about Plaintiff’s life expectancy or that his Plaintiff would lack memory or concentration 15 if trial were set 8 or 12 months out. Dr. Mokri offers no opinions about plaintiff’s asbestos disease 16 or mesothelioma, and while he describes “common symptoms” of plaintiff’s kidney disease (i.e., 17 loss of appetite or lower quality of life, weakness and fatigue, hypertension, and decreased mental 18 sharpness”), Dr. Mokri offers no opinion about these symptoms in Plaintiff. [Mokri, p. 2:18-19]. 19 Dr. Mokri only states that Plaintiff “experiences some of these symptoms”, without describing them 20 in Plaintiff or compare to his experience with similarly-situated patients. [Mokri, p. 2:18-19]. 21 Ultimately, the issue for Plaintiff’s motion is not whether Plaintiff has kidney disease and side effects 22 to treatment, but rather whether trial preference is “necessary” (i.e., absolutely needed or essential) 23 to prevent prejudice. 24 The declaration of Plaintiff’s counsel – which was the same declaration made 2 years ago, 25 do not show that Mr. Walker’s condition has changed in the last years such that trial within 120 is a 26 necessity. Plaintiff made the same claim of necessity two years ago, and yet it is undisputed that 27 two years later Mr. Walker is “still capable of participating in my trial, able to give testimony, 28 undergo cross examination, relate to the Court and jury, and generally assist my counsel at trial.” -7- CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL 1 [Walker’s Decl., ¶10, p. 3:13-15.] If Mr. Walker believed 2 years ago that trial preference was a 2 necessity yet two years later is still able to participate, it is apparent that there is no necessity for trial 3 preference. California Water is simply asking for a reasonable trial date that would allow it to 4 conduct discovery for events occurring over 40 years ago, have reasonable time to file a motion for 5 summary judgment, and have a reasonable time to prepare for trial. 6 The declarations in support of Plaintiff’s motion are conclusory and fail to provide what, if 7 any, impact Mr. Walker’s kidney disease have on her ability to participate in litigation in the future 8 such that trial preference within 120 days is necessary to prevent prejudice, especially where Plaintiff 9 made the same motion two years ago. There is simply no showing that Mr. Walker would not be 10 able to participate in litigation another 10, 12 months or beyond, especially where his symptoms 11 have been ongoing for 2 years, where Dr. Mokri’s declares that his treatment is to slow the 12 progression of the kidney disease, and where the declaration offer no specifics that would allow this 13 Court to conclude that Plaintiff will not be able to participate more than 120 days out. 14 V. THE INTERESTS OF JUSTICE WILL NOT BE SERVED AND THE 15 PROCEDURAL DUE PROCESS RIGHTS OF CALIFORNIA WATER S WILL BE 16 IMPAIRED IF THE MOTION IS GRANTED 17 Not only is there no necessity for trial within 120 days, but this court has discretion to deny 18 even a "mandatory" preferential trial setting where defendants’ due process rights are violated. 19 (Peters v. Sup.Ct. (County of Los Angeles) (1989) 212 Cal. App.3d 218, 227; Roe v. Sup.Ct. 20 (Sheldon) (1990) 224 Cal.App.3d 642, fn. 2.) Here, granting an expedited preference trial at this 21 time would strip California Water of its due process rights to adequately prepare for trial, whereas 22 Plaintiff has had 3 years to prepare for trial, Plaintiff is giving California Water only a few months 23 to locate witnesses for events occurring more than 40 years ago. Where Plaintiff’s opportunity for 24 exposure to asbestos was numerous, as shown by the approximate 34 jobs sites and employers for 25 which Plaintiff worked between 1965 and 1992 and claims exposure to asbestos, California Water 26 must have “an adequate opportunity to defend against the imposition of liability.” (Nelson v. Adams 27 USA, Inc. (2000) 529 U.S. 460, 466, 469 (finding a due process violation where defendant was 28 denied the “time and opportunity to respond to the claim” against it.) The defendant’s “opportunity -8- CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL 1 to defend” itself in a lawsuit is an “indispensable” element of due process.” (W.S.S. Lines, Inc. v. 2 San Pedro Peninsula Hosp. (1994) 8 Cal. 4th 100, 118). 3 California Water must receive an adequate opportunity to prepare for trial and conduct 4 sufficient discovery. (San Bernardino City Unified Sch. Dist. v. Super. Ct. (1987) 190 Cal. App. 3d 5 233, 240, affirming trial court's denial of request to set trial within 90 days in part because “some 6 degree of prejudice would have resulted merely because of the relatively short period of time in 7 which to actually prepare for trial”). There are “strong countervailing considerations” arising from 8 basic concerns about “fairness and due process” when considering motions for trial preference. 9 (Miller v. Super. Ct. (1990) 221 Cal. App. 3d 1200, 1206, acknowledging “strong countervailing 10 considerations—deriving from principles of efficient trial court management; from fairness and due 11 process to other litigants; and from divergent public policy or statutory contexts in which the section 12 36(a) mandate may be difficult, impractical, or impossible to realize”.) Therefore, defendants must 13 be given adequate time to prepare for trial no matter the technical limits of CCP § 36(a). (Peters, 14 supra, 212 Cal. App. 3d at 227, recognizing due process implications for granting a CCP § 36 motion 15 when defendant would not have adequate time to prepare for trial). “In deciding whether to grant a 16 preferential trial date, the trial court must consider the totality of the circumstances.” (Parlen v. 17 Golden State Sanwa Bank (1987) 194 Cal. App.3d 906, 912, citing Salas v. Sears, Roebuck & 18 Company (1986) 42 Cal. 3d 342, 344, holding that a trial court “must consider the ‘total picture,’ ... 19 including the condition of the court calendar, dilatory conduct by plaintiff, prejudice to defendant of 20 an accelerated trial date, and the likelihood of eventual mandatory dismissal if the early trial date is 21 denied.”) A preferential trial date will severely prejudice defendants. Accordingly, the Court should 22 weigh these interests in deciding whether to set a trial date and, at a minimum, in making such orders 23 to reasonably shorten discovery and dispositive motions. (Swaithes v. Superior Court (1989) 212 24 Cal.App.3d 1082.) 25 Here, the prejudice to California Water is especially substantial and unfair, compounded by 26 the unreasonable terms inserted in Plaintiff’s proposed Order. Here, Plaintiff has been litigating this 27 lawsuit since August of 2018, but did not name California Water until the 2021 Case. In other words, 28 Plaintiff has been able to conduct and benefits from discovery for the last 3 years, but is giving -9- CALIFORNIA WATER SERVICE COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR TRIAL PREFERENCE AND EXTENDING DISCOVERY CUTOFF UP TO TRIAL 1 California Water only months to prepare for trial. This is especially unfair where Plaintiff testified 2 2.5 years ago, on March 14, 2019, that he knew he installed transite pipes on California Water water 3 mains [Exhibit “C” to Dunkel Decl.] yet stilldid not name California Water as a defendant until 4 2021 (long after other defendants have already been dismissed.) This Court should consider that 5 Plaintiff made the same motion for trial preference 2 years ago, now admits that he still is able to 6 participate in trial (despite claiming otherwise 2 years ago), that Plaintiff delayed naming California 7 Water, and that Plaintiff benefits from substantially unequal time he has been litigation this case 8 while giving only a few months to California Water to prepare for trial. 9 Plaintiff’s proposed Order demonstrates Plaintiff’s intention to prejudice California Water. 10 He demands trial within 120 days, yet demands that California Water give 75 days-notice to file 11 summary judgment. He received 30 days to respond to discovery but demands that California Water 12 respond to discovery within 20 days. He has had 3 years to conduct discovery but wants to keep 13 discovery open until the eve of trial – and even up to jury selection thereby keeping his facts a 14 moving target. Moreover, the only person he identified as a witness by name, “Allen Brooks”, is 15 now represented by Brayton Purcell thereby ensuring that Plaintiff and his counsel are the 16 gatekeepers to evidence. [See Exhibit “C” to Dunkel Decl. p. 5:9, and 5:11-12. Identifying Allen 17 Brooks as their “clients of Brayton Purcell”.] Therefore, this Court should look at the totality of the 18 evidence, and find that not only is there no necessity for trial within 120 days, but that Plaintiff’s 19 motion was made before and yet plaintiff is still able to participate in trial 2 years later, and that the 20 motion unfairly prejudices California Water. 21 VI. SHOULD THE COURT BE INCLINED TO GRANT PREFERENCE, TRIAL DATE 22 SHOULD BE NO EARLIER THAN 120 DAYS, MOTIN FOR SUMMARY 23 JUDGMENT BE HEARD ON 28-DAYS NOTICE, FACT DISCOVERY CONCLUDE 24 30 DAYS BEFORE TRIAL, AND EXPERT DISCOVERY CONCLUDE 15-DAYS 25 BEFORE TRIAL. 26 Trial courts generally have the power to do whatever is necessary and appropriate, in the 27 absence of controlling legislation, to ensure the prompt, fair and orderly administration of justice. 28 (Neary v.