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  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview 
						
                                
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                                oD RP NS DH FF WwW

BRAYTON@PURCELL LLP
ATTORNEYS AT LAW
+222 RUSH LANDING ROAD
POBOX 6169
MOVATO, CALIFORNIA 94948-6169
ANS) BOB-LSSS

DAVID R. DONADIO, ESQ., 8.B. #134436

BRAYTON%*PURCELL LL! ELECTRONICALLY
Attorneys at Law
222 Rush Landing Road FILED
P.O. Box 6169 _ . Superior Court of California,
Novato, California 94948-6169 County of San Francisco
(415) 898-1555 MAR 01 2011

inti Clerk of the Court
Attomeys for Plaintiffs . BY: ALISON AGBAY

Deputy Clerk

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO
RODRICK BRECKLER and ) ASBESTOS
JOANN BRECKLER, ; No. CGC-08-274566
Plaintiffs, ) MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF

v. : MOTION FOR ORDER GRANTING
PREFERENCE IN SETTING CASE FOR

ASBESTOS DEFENDANTS (BP). ) TRIAL, AND EXTENDING DISCOVERY

CUTOFF

[C.C.P. § 36(d); CRC, Rule 3.1332]
Date: March 30, 2011
Time: 9:30 a.m.
Room; 220- The Hon. Harold E. Kahn
Trial Date: = N/A
Filing Date: March 12, 2008
1
INTRODUCTION
This action arises out of personal injuries sustained by plaintiff RODRICK BRECKLER
as a result of his exposure to asbestos and asbestos-containing products from approximately 1966)
through 1998. Plaintiffis presently 60 years of age and has been diagnosed as suffering from
asbestosis and asbestos-related pleural disease.
As is readily apparent from the attached declaration of plaintiffs treating physician,

Manuel Sanchez Palacios, M.D., who is Board-certified in Neurology and Internal medicine and

K nivred\108747gid NS Ac MEP. SEED pd 1 6/23/09
MEMORANOUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING PREFERENCE IN SETTING
CASE FOR TRIAL, AND EXTENDING DISCOVERY CUTOFFhas a special interest in asbestos-related diseases, dated February 17, 2011, plaintiff's prognosis is
so grave that there is substantial medical doubt that he will survive beyond six months.
Il. :

ARGUMENT

A. CODE OF CIVIL PROCEDURE SECTION 36(d) AUTHORIZES
PREFERENCE IN SETTING CASES FOR TRIAL WHERE MEDICAL
EVIDENCE RAISES A SUBSTANTIAL DOUBT THAT A PARTY WILL
SURVIVE BEYOND SIX MONTHS, AND THE INTERESTS
OF JUSTICE ARE SERVED BY GRANTING THE PREFERENCE.

Upon noticed motion and a showing of good cause, a party may move the court to
advance a case for trial under C.C.P. § 36. California Rules of Court, Rule 3.1335. In pertinent
part, C.C.P. § 36(d) provides that a court shall grant a motion for preference when:

... accompanied by clear and convincing medical documentation which

Sabstantial medical doubtof survival ofthat party beyond sxe months, anlwhich

satisfies the court that the interests of justice will be served by granting the

preference.

After granting a motion for preference, the court must set the matter for trial no more than 120
days from the date of the order, C.C.P. § 36(f).

As clearly demonstrated by the attached declaration of plaintiff's treating physician,
Manuel Sanchez Palacios, M.D., dated February 17, 2011, plaintiff has been diagnosed with
asbestosis and asbestos-related pleural disease, and faces a grave prognosis of less than six
months to live. In light of the few remaining months that plaintiff has left in his life, it is critical
to advance this case to trial as quickly as possible. Accordingly, good cause exists and the
interests of justice will be served by granting this Motion. Therefore, plaintiffs request the Court
enter an order promptly setting this case for trial pursuant to C.C.P. § 36.

B. IN LIGHT OF THE SUBSTANTIAL ISSUES OF FACT AND LAW

INVOLVED IN THIS CASE, DISCOVERY SHOULD REMAIN OPEN
UNTIL THE CASE IS ASSIGNED TO A TRIAL COURTROOM.

Even assuming the best efferts of both plaintiff and defense counsel in cooperating in the
completion of discovery in this matter, it is anticipated that such discovery cannot be completed
on or before the 30th day before the advanced trial date. C.C.P. § 2024.020(a). Further, disputes

frequently arise in cases such as this concerning discovery responses and depositions. Despite

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING PREFERENCE IN SETTING
‘CASE FOR TRIAL, AND EXTENDING DISCOVERY CUTOFFOo em NA AW PB WN =

= 3

the parties’ efforts to informally resolve such disputes, if is frequently necessary to involve the
court in motions concerning discovery. It is also anticipated that the parties will be unable to
have all such motions heard on or before the 15th day before trial. C.C.P. § 2024.020(a).
Therefore, plaintiffs request the Court enter an order that discovery shal! remain open
until the date that the case is actually assigned to a trial courtroom, and that motions concerning
discovery may be heard until the date that the case is actually assigned to a trial courtroom.
CONCLUSION

For each of the foregoing reasons, it is respectfully requested that plaintiffs’ motion be

granted and this case be set for trial within 60 days.
Dated: ~ A BRAYTON*’PURCELL LLP
By: Got

"David R. Donadio
Attorneys for Plaintiffs

KMelyroil 10874 7AM A-MFP-SFISD wed 3 : 8123/09
MEMORANDUM OF POINTS AND AUTHGRITIES IN SUPPORT OF MOTION FOR ORDER GRANTING PREFERENCE IN SETTING
CASE FOR TRIAL, AND EXTENDING DISCOVERY CUTOFF