On May 25, 2023 a
Motion-Secondary
was filed
involving a dispute between
Purcell, George,
and
3M Company,
Air & Liquid Systems Corporation,
Anheuser-Busch, Llc,
Astra Flooring Company,
Chevron U.S.A. Inc.,
Does 1 Through 800, Inclusive,,
Fluor Corporation,
Foster Wheeler Llc,
General Electric Company,
Hill Brothers Chemical Company,
Imo Industries Inc.,
Metalclad Insulation Llc,
Pacific Gas And Electric Company,
Paramount Global,,
Parker-Hannifin Corporation,
Pfizer, Inc.,
Redco Corporation,
Republic Supply Company,
Riley Power Inc.,
Santa Fe Braun, Inc.,
Shell Usa, Inc.,
Syd Carpenter, Marine Contractor, Inc.,
Union Oil Company Of California,
for ASBESTOS
in the District Court of San Francisco County.
Preview
1 DAVID R. DONADIO, ESQ., S.B. #154436
DDonadio@braytonlaw.com
2 JASON M. ROSE, ESQ., S.B. #265984
jrose@braytonlaw.com ELECTRONICALLY
3 KIMBERLY J. CHU, ESQ., S.B. #206817
kchu@braytonlaw.com
FILED
Superior Court of California,
4 BRAYTON˜PURCELL LLP County of San Francisco
Attorneys at Law 11/20/2023
5 222 Rush Landing Road, P.O. Box 6169 Clerk of the Court
Novato, California 94948-6169 BY: SANDRA SCHIRO
6 (415) 898-1555 Deputy Clerk
7 Attorneys For Plaintiff
Tentative Ruling Contest Email: motions@braytonlaw.com
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
11 GEORGE PURCELL, ) ASBESTOS
) No. CGC-23-277132
12 Plaintiff, )
NOVATO, CALIFORNIA 94948-6169
) MEMORANDUM OF POINTS AND
BRAYTON˜PURCELL LLP
222 RUSH LANDING ROAD
13 vs. ) AUTHORITIES IN SUPPORT OF
ATTORNEYS AT LAW
) MOTION FOR ORDER GRANTING
(415) 898-1555
P O BOX 6169
14 GENERAL ELECTRIC COMPANY, ) PREFERENCE IN SETTING CASE FOR
et al., ) TRIAL, AND EXTENDING DISCOVERY
15 ) CUTOFF
Defendants. )
16
[C.C.P. § 36(d) and (e)]
17
Date: December 21, 2023
18 Time: 9:30 a.m.
Dept. 503: The Hon. Samuel K. Feng
19 Trial Date: N/A
Filing Date: May 25, 2023
20
21 I.
22 INTRODUCTION
23 This action arises out of personal injuries sustained by plaintiff GEORGE PURCELL as a
24 result of his exposure to asbestos and asbestos-containing products from approximately 1972
25 through 2004. Plaintiff is presently 69 years old and in a coma. Mr. PURCELL has been
26 intubated since April 2023 and has been transferred between Kindred Hospital and St. Joseph
27 Transitional Rehabilitation multiple times due to various issues including respiratory distress and
28 a severe bedsore that cause an infection in his spine. Mr. PURCELL requires continuous
K:\Injured\129385\PLD\P&A MFP 36(d)(e).wpd 1 (JMR)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING
PREFERENCE IN SETTING CASE FOR TRIAL, AND EXTENDING DISCOVERY CUTOFF
1 supplemental oxygen at 3 liters per minute. Mr. PURCELL is fed through a tube. Mr.
2 PURCELL is suffering from multiple co-morbid medical conditions and diseases that include
3 heart failure, chronic obstructive pulmonary disease (COPD), type 2 diabetes, hypertension (high
4 blood pressure), dyslipidemia, acute respiratory failure, severe protein-calorie malnutrition,
5 morbid obesity, pulmonary edema, pleural effusion, stage IV bedsore, and has a medical history
6 significant for hypoxia and stroke.
7 As is readily apparent from the declaration of plaintiff’s treating physician, Charanpal
8 Singh, M.D., who is Board-certified in Internal Medicine, Critical Care Medicine, and
9 Pulmonary Disease, plaintiff's prognosis is so grave that there is substantial medical doubt that he
10 will survive beyond six months. The interests of justice will be served by granting trial
11 preference.
12 II.
13 ARGUMENT
14 A. CODE OF CIVIL PROCEDURE SECTION 36(d) AUTHORIZES
PREFERENCE IN SETTING CASES FOR TRIAL WHERE MEDICAL
15 EVIDENCE RAISES A SUBSTANTIAL DOUBT THAT A PARTY WILL
SURVIVE BEYOND SIX MONTHS, AND THE INTERESTS OF JUSTICE
16 ARE SERVED BY GRANTING THE PREFERENCE.
17 Upon noticed motion and a showing of good cause, a party may move the court to
18 advance a case for trial under Code of Civil Procedure Section 361. In pertinent part, Section
19 36(d) provides that a court shall grant a motion for preference when:
20 . . . accompanied by clear and convincing medical documentation
which concludes that one of the parties suffers from an illness or
21 condition raising substantial medical doubt of survival of that party
beyond six months, and which satisfies the court that the interests
22 of justice will be served by granting the preference.
23 After granting a motion for preference, the court must set the matter for trial no more than 120
24 days from the date of the order. Section 36(f).
25 Plaintiff has been diagnosed with multiple co-morbid medical conditions and diseases.
26 He is currently in a coma. He is not expected to survive beyond six months. In light of the few
27
28 1
All further references will be to the Code of Civil Procedure unless stated otherwise.
K:\Injured\129385\PLD\P&A MFP 36(d)(e).wpd 2 (JMR)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING
PREFERENCE IN SETTING CASE FOR TRIAL, AND EXTENDING DISCOVERY CUTOFF
1 remaining months that plaintiff has left in his life, it is critical to advance this case to trial as
2 quickly as possible. Accordingly, good cause exists and the interests of justice will be served by
3 granting this Motion.
4 (S)ection 36 was enacted for the purpose of assuring that an aged
or terminally ill plaintiff would be able to participate in the trial
5 of his or her case and be able to realize redress upon the claim
asserted. (fn 12) Such a preference is not only necessary to assure
6 a party's peace of mind that he or she will live to see a particular
dispute brought to resolution but it can also have substantive
7 consequences. The party's presence and ability to testify in person
and/or assist counsel may be critical to success. In addition, the
8 nature of the ultimate recovery can be adversely affected by a
plaintiff's death prior to judgment. (See, e.g., § 377.34.)
9
fn 12 - This is not only the obvious intent of the words used in
10 the statute, it is borne out by the legislative history. The comment
to the digest of the legislation relating to Section 36 by the
11 Assembly Committee on Judiciary states: "This Bill would provide
an early trial date for persons who because of their advanced age
12 or serious medical problems might die or become incapacitated
before their cases come to trial."
13
(Looney v. Superior Court (1993) 16 Cal.App.4th 521, 532.)
14
Here, plaintiff is in a significantly impaired state of health and there is substantial medical
15
doubt of his survival beyond six months. The policy underlying Section 36 - to safeguard
16
plaintiff against the legislatively acknowledged risk that death might deprive him of the
17
opportunity to effectively participate in the trial of his case and to recover his just measure of
18
damages or appropriate redress - compels an order granting Plaintiff GEORGE PURCELL
19
preference. Only then can the interests of justice be served so that plaintiff can be assured an
20
opportunity to properly and effectively participate in his own trial.
21
Therefore, pursuant to Section 36(d), its important underlying policy, and in furtherance
22
of the interests of justice, plaintiff requests the court enter an order promptly setting this case for
23
trial.
24
B. CODE OF CIVIL PROCEDURE SECTION 36(e) AUTHORIZES
25 PREFERENCE IN SETTING CASES FOR TRIAL WHEN
SUPPORTED BY A SHOWING THAT THE
26 INTERESTS OF JUSTICE WILL BE SERVED.
27 Upon noticed motion and a showing of good cause, a party may move the court to
28 advance a case for trial under Section 36. Section 36(e) provides that:
K:\Injured\129385\PLD\P&A MFP 36(d)(e).wpd 3 (JMR)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING
PREFERENCE IN SETTING CASE FOR TRIAL, AND EXTENDING DISCOVERY CUTOFF
1
Not withstanding any other provision of law, the court may in its
2 discretion grant a motion for preference that is supported by a
showing that satisfies the court that the interest of justice will be
3 served by granting this preference.
4 After granting a motion for preference, the court must set the matter for trial no more than
5 120 days from the date of the order. Section 36(f).
6 As demonstrated by the declaration of plaintiff's treating physician, Charanpal Singh,
7 M.D.:
8 George Purcell is 69 years old and, in April 2023, was brought into
the ER by paramedics for congestive heart failure and hypoxia.
9 While in the ER he went into cardiac arrest and was intubated. A
chest CT taken during this time showed no pulmonary embolism
10 however it did reveal near-complete consolidative changes of the
right lung. A brain MRI obtained in April 2023 showed chronic
11 small focal parasagittal right parietal hemorrhagic cortical infarct
(stroke). Mr. Purcell remains unresponsive despite weaning him
12 off sedation. He requires continuous supplemental oxygen at 3
liters per minute. Mr. Purcell is fed through a tube. Mr. Purcell's
13 medical history is also significant for heart failure, chronic
obstructive pulmonary disease (COPD) on home oxygen, type 2
14 diabetes, hypertension, dyslipidemia, acute respiratory failure,
severe protein-calorie malnutrition, morbid obesity, pulmonary
15 edema, pleural effusion, and stage IV bedsore.
16 (Charanpal Singh, M.D. Decl. at ¶ 3.)
17 Mr. Purcell remains unresponsive and no durable improvement in
his health can reasonably be expected.
18
(Charanpal Singh, M.D. Decl. at ¶ 5.)
19
The circumstances set forth above, along with my personal
20 knowledge of Mr. Purcell's medical history and experience and
clinical knowledge of the typical outcomes for people who suffer
21 from multiple co-morbid medical conditions and who remain
unresponsive following six months of intubaton, lead me to
22 conclude that there is substantial medical doubt of his survival
beyond 6 months.
23
(Charanpal Singh, M.D. Decl. at ¶ 6.)
24
And as stated in his son’s declaration “My father’s medical bills are piling up. If my
25
father’s case is not set for trial son, I believe my father’s legal rights and interests will be severely
26
prejudiced.”
27
(McCLeary Declaration at ¶ 5.)
28
K:\Injured\129385\PLD\P&A MFP 36(d)(e).wpd 4 (JMR)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING
PREFERENCE IN SETTING CASE FOR TRIAL, AND EXTENDING DISCOVERY CUTOFF
1 Pursuant to the purpose and policies of Section 36, it is necessary to advance this case to
2 trial as quickly as possible.
3 (S)ection 36 was enacted for the purpose of assuring that an aged
or terminally ill plaintiff would be able to participate in the trial
4 of his or her case and be able to realize redress upon the claim
asserted. (fn 12) Such a preference is not only necessary to assure
5 a party's peace of mind that he or she will live to see a particular
dispute brought to resolution but it can also have substantive
6 consequences. The party's presence and ability to testify in person
and/or assist counsel may be critical to success. In addition, the
7 nature of the ultimate recovery can be adversely affected by a
plaintiff's death prior to judgment. (See, e.g., § 377.34.)
8
fn 12 - This is not only the obvious intent of the words used in
9 the statute, it is borne out by the legislative history. The comment
to the digest of the legislation relating to section 36 by the
10 Assembly Committee on Judiciary states: "This Bill would provide
an early trial date for persons who because of their advanced age
11 or serious medical problems might die or become incapacitated
before their cases come to trial."
12
(Looney v. Superior Court (1993) 16 Cal.App.4th 521, 532.)
13
As plaintiff's health is impaired and expected to decline, trial preference is necessary to
14
prevent prejudicing his interest in the litigation. As set forth above, Section 36 was enacted for
15
the purpose of assuring that a plaintiff of advanced age or having serious medical problems
16
would be able to participate in the trial of his case and be able to realize redress upon the claim
17
asserted.
18
Courts have historically recognized the need to advance trial dates where there is a
19
showing of “good cause,” and where the denial of an early trial date would prejudice plaintiff by
20
permanently depriving plaintiff of his or her day in court. In granting plaintiff’s motion for early
21
trial, even absent statutory authority at the time, the Court in Moffitt v. Ford Motor Company
22
(1931) 115 Cal.App.499, 500, noted that:
23
[T]he affidavit filed does show that the respondent is nearly
24 seventy-nine years of age and is infirm in health and general
physical condition...and in view of the fact that the case has not yet
25 been tried on the merits, we believe the question whether it should
or should not be tried should be determined speedily, so that if the
26 trial is to be had, it may be reached while the respondent is in a
physical and mental condition to present her case. (Emphasis
27 added.)
28 Without an early trial date, plaintiff may likely be deprived of an opportunity to fully and
K:\Injured\129385\PLD\P&A MFP 36(d)(e).wpd 5 (JMR)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING
PREFERENCE IN SETTING CASE FOR TRIAL, AND EXTENDING DISCOVERY CUTOFF
1 fairly present his case while he is in physical and mental condition to do so.
2 Accordingly, good cause exists and the interests of justice will be served by granting this
3 Motion for Preference.
4 C. IN LIGHT OF THE SUBSTANTIAL ISSUES OF FACT AND LAW
INVOLVED IN THIS CASE, DISCOVERY SHOULD REMAIN OPEN
5 UNTIL THE CASE IS ASSIGNED TO A TRIAL COURTROOM.
6 Even assuming the best efforts of both plaintiff and defense counsel in cooperating in the
7 completion of discovery in this matter, it is anticipated that such discovery cannot be completed
8 on or before the 30th day before the advanced trial date. Section 2024.020(a). Further, disputes
9 frequently arise in cases such as this concerning discovery responses and depositions. Despite
10 the parties' efforts to informally resolve such disputes, it is frequently necessary to involve the
11 court in motions concerning discovery. It is also anticipated that the parties will be unable to
12 have all such motions heard on or before the 15th day before trial. Section 2024.020(a).
13 Therefore, plaintiff requests the Court enter an order that discovery shall remain open
14 until the date that the case is actually assigned to a trial courtroom, and that motions concerning
15 discovery may be heard until the date that the case is actually assigned to a trial courtroom.
16 CONCLUSION
17 For each of the foregoing reasons, it is respectfully requested that plaintiff’s motion be
18 granted and this case set for trial within 120 days.
19 Dated: 11/20/2023 BRAYTON˜PURCELL LLP
20
21 By:
David R. Donadio
22 Attorneys for Plaintiff
23
24
25
26
27
28
K:\Injured\129385\PLD\P&A MFP 36(d)(e).wpd 6 (JMR)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING
PREFERENCE IN SETTING CASE FOR TRIAL, AND EXTENDING DISCOVERY CUTOFF
Preview
1 DAVID R. DONADIO, ESQ., S.B. #154436 DDonadio@braytonlaw.com 2 JASON M. ROSE, ESQ., S.B. #265984 jrose@braytonlaw.com ELECTRONICALLY 3 KIMBERLY J. CHU, ESQ., S.B. #206817 kchu@braytonlaw.com FILED Superior Court of California, 4 BRAYTON˜PURCELL LLP County of San Francisco Attorneys at Law 11/20/2023 5 222 Rush Landing Road, P.O. Box 6169 Clerk of the Court Novato, California 94948-6169 BY: SANDRA SCHIRO 6 (415) 898-1555 Deputy Clerk 7 Attorneys For Plaintiff Tentative Ruling Contest Email: motions@braytonlaw.com 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 GEORGE PURCELL, ) ASBESTOS ) No. CGC-23-277132 12 Plaintiff, ) NOVATO, CALIFORNIA 94948-6169 ) MEMORANDUM OF POINTS AND BRAYTON˜PURCELL LLP 222 RUSH LANDING ROAD 13 vs. ) AUTHORITIES IN SUPPORT OF ATTORNEYS AT LAW ) MOTION FOR ORDER GRANTING (415) 898-1555 P O BOX 6169 14 GENERAL ELECTRIC COMPANY, ) PREFERENCE IN SETTING CASE FOR et al., ) TRIAL, AND EXTENDING DISCOVERY 15 ) CUTOFF Defendants. ) 16 [C.C.P. § 36(d) and (e)] 17 Date: December 21, 2023 18 Time: 9:30 a.m. Dept. 503: The Hon. Samuel K. Feng 19 Trial Date: N/A Filing Date: May 25, 2023 20 21 I. 22 INTRODUCTION 23 This action arises out of personal injuries sustained by plaintiff GEORGE PURCELL as a 24 result of his exposure to asbestos and asbestos-containing products from approximately 1972 25 through 2004. Plaintiff is presently 69 years old and in a coma. Mr. PURCELL has been 26 intubated since April 2023 and has been transferred between Kindred Hospital and St. Joseph 27 Transitional Rehabilitation multiple times due to various issues including respiratory distress and 28 a severe bedsore that cause an infection in his spine. Mr. PURCELL requires continuous K:\Injured\129385\PLD\P&A MFP 36(d)(e).wpd 1 (JMR) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING PREFERENCE IN SETTING CASE FOR TRIAL, AND EXTENDING DISCOVERY CUTOFF 1 supplemental oxygen at 3 liters per minute. Mr. PURCELL is fed through a tube. Mr. 2 PURCELL is suffering from multiple co-morbid medical conditions and diseases that include 3 heart failure, chronic obstructive pulmonary disease (COPD), type 2 diabetes, hypertension (high 4 blood pressure), dyslipidemia, acute respiratory failure, severe protein-calorie malnutrition, 5 morbid obesity, pulmonary edema, pleural effusion, stage IV bedsore, and has a medical history 6 significant for hypoxia and stroke. 7 As is readily apparent from the declaration of plaintiff’s treating physician, Charanpal 8 Singh, M.D., who is Board-certified in Internal Medicine, Critical Care Medicine, and 9 Pulmonary Disease, plaintiff's prognosis is so grave that there is substantial medical doubt that he 10 will survive beyond six months. The interests of justice will be served by granting trial 11 preference. 12 II. 13 ARGUMENT 14 A. CODE OF CIVIL PROCEDURE SECTION 36(d) AUTHORIZES PREFERENCE IN SETTING CASES FOR TRIAL WHERE MEDICAL 15 EVIDENCE RAISES A SUBSTANTIAL DOUBT THAT A PARTY WILL SURVIVE BEYOND SIX MONTHS, AND THE INTERESTS OF JUSTICE 16 ARE SERVED BY GRANTING THE PREFERENCE. 17 Upon noticed motion and a showing of good cause, a party may move the court to 18 advance a case for trial under Code of Civil Procedure Section 361. In pertinent part, Section 19 36(d) provides that a court shall grant a motion for preference when: 20 . . . accompanied by clear and convincing medical documentation which concludes that one of the parties suffers from an illness or 21 condition raising substantial medical doubt of survival of that party beyond six months, and which satisfies the court that the interests 22 of justice will be served by granting the preference. 23 After granting a motion for preference, the court must set the matter for trial no more than 120 24 days from the date of the order. Section 36(f). 25 Plaintiff has been diagnosed with multiple co-morbid medical conditions and diseases. 26 He is currently in a coma. He is not expected to survive beyond six months. In light of the few 27 28 1 All further references will be to the Code of Civil Procedure unless stated otherwise. K:\Injured\129385\PLD\P&A MFP 36(d)(e).wpd 2 (JMR) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING PREFERENCE IN SETTING CASE FOR TRIAL, AND EXTENDING DISCOVERY CUTOFF 1 remaining months that plaintiff has left in his life, it is critical to advance this case to trial as 2 quickly as possible. Accordingly, good cause exists and the interests of justice will be served by 3 granting this Motion. 4 (S)ection 36 was enacted for the purpose of assuring that an aged or terminally ill plaintiff would be able to participate in the trial 5 of his or her case and be able to realize redress upon the claim asserted. (fn 12) Such a preference is not only necessary to assure 6 a party's peace of mind that he or she will live to see a particular dispute brought to resolution but it can also have substantive 7 consequences. The party's presence and ability to testify in person and/or assist counsel may be critical to success. In addition, the 8 nature of the ultimate recovery can be adversely affected by a plaintiff's death prior to judgment. (See, e.g., § 377.34.) 9 fn 12 - This is not only the obvious intent of the words used in 10 the statute, it is borne out by the legislative history. The comment to the digest of the legislation relating to Section 36 by the 11 Assembly Committee on Judiciary states: "This Bill would provide an early trial date for persons who because of their advanced age 12 or serious medical problems might die or become incapacitated before their cases come to trial." 13 (Looney v. Superior Court (1993) 16 Cal.App.4th 521, 532.) 14 Here, plaintiff is in a significantly impaired state of health and there is substantial medical 15 doubt of his survival beyond six months. The policy underlying Section 36 - to safeguard 16 plaintiff against the legislatively acknowledged risk that death might deprive him of the 17 opportunity to effectively participate in the trial of his case and to recover his just measure of 18 damages or appropriate redress - compels an order granting Plaintiff GEORGE PURCELL 19 preference. Only then can the interests of justice be served so that plaintiff can be assured an 20 opportunity to properly and effectively participate in his own trial. 21 Therefore, pursuant to Section 36(d), its important underlying policy, and in furtherance 22 of the interests of justice, plaintiff requests the court enter an order promptly setting this case for 23 trial. 24 B. CODE OF CIVIL PROCEDURE SECTION 36(e) AUTHORIZES 25 PREFERENCE IN SETTING CASES FOR TRIAL WHEN SUPPORTED BY A SHOWING THAT THE 26 INTERESTS OF JUSTICE WILL BE SERVED. 27 Upon noticed motion and a showing of good cause, a party may move the court to 28 advance a case for trial under Section 36. Section 36(e) provides that: K:\Injured\129385\PLD\P&A MFP 36(d)(e).wpd 3 (JMR) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING PREFERENCE IN SETTING CASE FOR TRIAL, AND EXTENDING DISCOVERY CUTOFF 1 Not withstanding any other provision of law, the court may in its 2 discretion grant a motion for preference that is supported by a showing that satisfies the court that the interest of justice will be 3 served by granting this preference. 4 After granting a motion for preference, the court must set the matter for trial no more than 5 120 days from the date of the order. Section 36(f). 6 As demonstrated by the declaration of plaintiff's treating physician, Charanpal Singh, 7 M.D.: 8 George Purcell is 69 years old and, in April 2023, was brought into the ER by paramedics for congestive heart failure and hypoxia. 9 While in the ER he went into cardiac arrest and was intubated. A chest CT taken during this time showed no pulmonary embolism 10 however it did reveal near-complete consolidative changes of the right lung. A brain MRI obtained in April 2023 showed chronic 11 small focal parasagittal right parietal hemorrhagic cortical infarct (stroke). Mr. Purcell remains unresponsive despite weaning him 12 off sedation. He requires continuous supplemental oxygen at 3 liters per minute. Mr. Purcell is fed through a tube. Mr. Purcell's 13 medical history is also significant for heart failure, chronic obstructive pulmonary disease (COPD) on home oxygen, type 2 14 diabetes, hypertension, dyslipidemia, acute respiratory failure, severe protein-calorie malnutrition, morbid obesity, pulmonary 15 edema, pleural effusion, and stage IV bedsore. 16 (Charanpal Singh, M.D. Decl. at ¶ 3.) 17 Mr. Purcell remains unresponsive and no durable improvement in his health can reasonably be expected. 18 (Charanpal Singh, M.D. Decl. at ¶ 5.) 19 The circumstances set forth above, along with my personal 20 knowledge of Mr. Purcell's medical history and experience and clinical knowledge of the typical outcomes for people who suffer 21 from multiple co-morbid medical conditions and who remain unresponsive following six months of intubaton, lead me to 22 conclude that there is substantial medical doubt of his survival beyond 6 months. 23 (Charanpal Singh, M.D. Decl. at ¶ 6.) 24 And as stated in his son’s declaration “My father’s medical bills are piling up. If my 25 father’s case is not set for trial son, I believe my father’s legal rights and interests will be severely 26 prejudiced.” 27 (McCLeary Declaration at ¶ 5.) 28 K:\Injured\129385\PLD\P&A MFP 36(d)(e).wpd 4 (JMR) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING PREFERENCE IN SETTING CASE FOR TRIAL, AND EXTENDING DISCOVERY CUTOFF 1 Pursuant to the purpose and policies of Section 36, it is necessary to advance this case to 2 trial as quickly as possible. 3 (S)ection 36 was enacted for the purpose of assuring that an aged or terminally ill plaintiff would be able to participate in the trial 4 of his or her case and be able to realize redress upon the claim asserted. (fn 12) Such a preference is not only necessary to assure 5 a party's peace of mind that he or she will live to see a particular dispute brought to resolution but it can also have substantive 6 consequences. The party's presence and ability to testify in person and/or assist counsel may be critical to success. In addition, the 7 nature of the ultimate recovery can be adversely affected by a plaintiff's death prior to judgment. (See, e.g., § 377.34.) 8 fn 12 - This is not only the obvious intent of the words used in 9 the statute, it is borne out by the legislative history. The comment to the digest of the legislation relating to section 36 by the 10 Assembly Committee on Judiciary states: "This Bill would provide an early trial date for persons who because of their advanced age 11 or serious medical problems might die or become incapacitated before their cases come to trial." 12 (Looney v. Superior Court (1993) 16 Cal.App.4th 521, 532.) 13 As plaintiff's health is impaired and expected to decline, trial preference is necessary to 14 prevent prejudicing his interest in the litigation. As set forth above, Section 36 was enacted for 15 the purpose of assuring that a plaintiff of advanced age or having serious medical problems 16 would be able to participate in the trial of his case and be able to realize redress upon the claim 17 asserted. 18 Courts have historically recognized the need to advance trial dates where there is a 19 showing of “good cause,” and where the denial of an early trial date would prejudice plaintiff by 20 permanently depriving plaintiff of his or her day in court. In granting plaintiff’s motion for early 21 trial, even absent statutory authority at the time, the Court in Moffitt v. Ford Motor Company 22 (1931) 115 Cal.App.499, 500, noted that: 23 [T]he affidavit filed does show that the respondent is nearly 24 seventy-nine years of age and is infirm in health and general physical condition...and in view of the fact that the case has not yet 25 been tried on the merits, we believe the question whether it should or should not be tried should be determined speedily, so that if the 26 trial is to be had, it may be reached while the respondent is in a physical and mental condition to present her case. (Emphasis 27 added.) 28 Without an early trial date, plaintiff may likely be deprived of an opportunity to fully and K:\Injured\129385\PLD\P&A MFP 36(d)(e).wpd 5 (JMR) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING PREFERENCE IN SETTING CASE FOR TRIAL, AND EXTENDING DISCOVERY CUTOFF 1 fairly present his case while he is in physical and mental condition to do so. 2 Accordingly, good cause exists and the interests of justice will be served by granting this 3 Motion for Preference. 4 C. IN LIGHT OF THE SUBSTANTIAL ISSUES OF FACT AND LAW INVOLVED IN THIS CASE, DISCOVERY SHOULD REMAIN OPEN 5 UNTIL THE CASE IS ASSIGNED TO A TRIAL COURTROOM. 6 Even assuming the best efforts of both plaintiff and defense counsel in cooperating in the 7 completion of discovery in this matter, it is anticipated that such discovery cannot be completed 8 on or before the 30th day before the advanced trial date. Section 2024.020(a). Further, disputes 9 frequently arise in cases such as this concerning discovery responses and depositions. Despite 10 the parties' efforts to informally resolve such disputes, it is frequently necessary to involve the 11 court in motions concerning discovery. It is also anticipated that the parties will be unable to 12 have all such motions heard on or before the 15th day before trial. Section 2024.020(a). 13 Therefore, plaintiff requests the Court enter an order that discovery shall remain open 14 until the date that the case is actually assigned to a trial courtroom, and that motions concerning 15 discovery may be heard until the date that the case is actually assigned to a trial courtroom. 16 CONCLUSION 17 For each of the foregoing reasons, it is respectfully requested that plaintiff’s motion be 18 granted and this case set for trial within 120 days. 19 Dated: 11/20/2023 BRAYTON˜PURCELL LLP 20 21 By: David R. Donadio 22 Attorneys for Plaintiff 23 24 25 26 27 28 K:\Injured\129385\PLD\P&A MFP 36(d)(e).wpd 6 (JMR) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING PREFERENCE IN SETTING CASE FOR TRIAL, AND EXTENDING DISCOVERY CUTOFF