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1 Mark L. Webb, Esq. (Bar No. 67959)
994 Clayton Street, Suite 2
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San Francisco, California 94102 ELECTRONICALLY
3 Telephone: (415) 515-0960 F I L E D
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mark@markwebb.com Superior Court of California,
County of San Francisco
5 Attorney for Plaintiff LYNETTE BREMER 07/13/2020
Clerk of the Court
BY: RONNIE OTERO
6 Deputy Clerk
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO – UNLIMITED CIVIL
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11 LYNETTE BREMER, Case No.: CGC-20-583570
12 Plaintiff, PLAINTIFF’S REPLY BRIEF IN SUPPORT
13 OF MOTION FOR PREFERENCE IN
vs.
SETTING CASE FOR TRIAL PURSUANT
14 WALGREENS, INC. and DOES 1 to 50, TO CCP § 36(a)
15 Defendants.
Date: July 21, 2020
16 Time: 9:30 a.m.
Dept.: 206
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18 Case Filed: March 9, 2020
Trial Date: Not Set
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21 I. INTRODUCTION
22 This is a strict product liability case in which Defendant has had multiple opportunities
23 to refute Plaintiff’s claim that she received an empty, defective KWIKPEN containing no
24 insulin, causing her injuries. To date, Defendant has not denied this assertion. Currently this
25 case is primarily about damages and is not in any way a complex piece of litigation.
26 In its opposition to Plaintiff's motion under CCP § 36(a), Defendant has misled this
27 Court on several points:
28 1. WALGREENS has misstated the law on admissibility of evidence.
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_________________________________________________________________________________________
PLAINTIFF’S REPLY IN SUPPORT OF
MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a)
1 2. WALGREENS has attacked Plaintiff's proof without supplying any of its own.
2 3. WALGREENS continues to impede the progress of this case in its ongoing
3 objections to each and every discovery request to date. (See Exhibit A, Declaration of Mark
4 Webb.)
5 4. WALGREENS’ opposition does not state any valid legal precedent in support of
6 their opposition to trial preference.
7 II. POINTS AND AUTHORITIES
8 A. Plaintiff Need Only Show Her Failing Health Could Prejudice Her Case
9 Defendant is incorrect in stating that the Plaintiff need show a causal connection
10 between Defendant’s liability for Plaintiff’s dire health circumstances and the need for
11 preferential trial date. All Plaintiff need show is that her failing health, whether caused by
12 Defendant or for other reasons, calls for trial preference. Defendant has cited no authority for
13 the erroneous proposition that Plaintiff’s dire condition need to have been caused by the
14 Defendant and that is because there is no authority. It is not the law. Defendant need look no
15 further than the black letter of what the law actually states. Per CCP § 36(a):
16 (2) The health of the party is such that a preference is
17 necessary to prevent prejudicing the parties interests in the
litigation.
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19 An example of this would be if a plaintiff had been injured in a car accident and
20 developed an unrelated case of cancer that threatened the plaintiff’s ability to participate in trial.
21 These facts would meet the standard under CCP § 36(a).
22 Plaintiff submits that her blindness, which Plaintiff contends is the result of Defendant’s
23 liability, is certainly a contributing factor to her failing medical condition. Just last week,
24 because she was unable to see and therefore care for herself, she required emergency, life-saving
25 surgery for a systemic infection that began with a lesion and became life-threatening. (See
26 Exhibit B, Plaintiff’s medical records that describe her condition.) She was in such a
27 compromised state that she could not give consent before the emergency surgery such that her
28 daughter was called to give consent on a call with two nurses, acting as witnesses, as
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_________________________________________________________________________________________
PLAINTIFF’S REPLY IN SUPPORT OF
MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a)
1 the doctor sought permission to operate on her mother in an hour.
2 As stated in Looney v. Superior Court (Medical Center of North Hollywood) (1993) 16
3 Cal.App.4th 521 and 532:
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“Such a preference is not only necessary to assure a party’s peace
5 of mind that he or she will live to see a particular dispute brought
to resolution but it can also have substantive consequences. The
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party's presence and ability to testify in person and/or assist
7 counsel may be critical to success. In addition, the nature of the
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ultimate recovery can be adversely affected by a plaintiff's death
prior to judgment.”
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10 B. Plaintiff’s Deteriorating Physical Condition
11 Defendant, in its opposition, has tried to label Plaintiff’s physical deterioration as “loss
12 of enjoyment of life.” It is far more severe than that. Plaintiff was formerly an independent
13 woman before receiving the defective KWIKPEN, living alone and taking care of herself. She is
14 now in a nursing facility, having survived a near fatal systemic infection, is blind, and needs all
15 her meals to be provided to her with 24 hour medical care. Plaintiff submits that this is precisely
16 the type of deterioration that calls for relief under CCP § 36.
17 The recent supplemental declaration of Plaintiff’s daughter contains within it text
18 messages to and from Plaintiff’s daughter to providing doctors and nurses who conducted
19 emergency surgery. These items of evidence constitute real proof admissible to this Court,
20 unlike Defendant’s complete absence of proof and submission of mere argument of counsel.
21 Please see Gdowski v. Gdowski (2009) 175 Cal.App.4th 128,139 and Duchrow v. Forrest (2013)
22 215 Cal.App.4th 1359, 1379-1380.
23 C. An Attorney’s Declaration Is Expressly Admissible in Support of this Motion
24 Defendant’s counsel misleads the Court in contending that:
25 “Contrary to the findings required to satisfy the second prong of
Code Civ. Proc., § 36(a), the Declaration of Mark L. Webb, Esq.
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contains zero evidence [bold added for emphasis] to support a
27 finding that trial preference is necessary to prevent prejudicing
Plaintiff’s interest in the litigation.” (See Opposition Brief Page 2,
28
///
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PLAINTIFF’S REPLY IN SUPPORT OF
MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a)
1 beginning between lines 9 and 10.)
2 In fact, the law states the exact opposite! Please see CCP § 36.5.
3 An affidavit submitted in support of a motion for preference under
subdivision (a) of Section 36 may be signed by the attorney for
4 the party seeking preference based upon information and
5 belief as to the medical diagnosis and prognosis of any party.
[Bold added for emphasis.] The affidavit is not admissible for any
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purpose other than a motion for preference under subdivision (a) of
7 Section 36.
8 See Exhibit A, Declaration of Mark Webb, paragraph 8.
9 D. The Daughter’s Declaration Is Admissible
10 Again, Defendant misstates the law. It is fundamental that this Court is authorized to
11 take into consideration any relevant evidence presented in support of a motion. See Evidence
12 Code—EVID § 210:
13 “Relevant evidence” means evidence, including evidence
14 relevant to the credibility of a witness or hearsay declarant,
[bold emphasis] having any tendency in reason to prove or
15 disprove any disputed fact that is of consequence to the
16 determination of the action.
17 Plaintiff is currently incapacitated and unable to present a declaration on her own. (See
18 Exhibit A, Declaration of Mark Webb, paragraph 8.) Plaintiff’s daughter has had, and continues
19 to have, firsthand observations of her mother’s condition that Defendant would have this Court
20 ignore, despite the exigencies of this case.
21 Furthermore, Ms. Snelling’s being involved intimately with this matter is not a new fact
22 to Defendant—she was mentioned in the original complaint (filed and served in March 2020) as
23 a vital witness. She was the one who spoke to WALGREENS when she returned the defective
24 KWIKPEN. (Despite her status in this matter Defendant has not noticed her deposition nor
25 inquired about taking it all.) Yet, Defendant discounts Ms. Snelling’s firsthand observations, and
26 attempts to dictate to this Court what is and what is not relevant. In fact, it is up to this Court to
27 decide, not counsel for WALGREENS, what is relevant and credible evidence.
28 Please see Gdowski v. Gdowski and Duchrow v. Forrest, supra, for the proposition that
4
_________________________________________________________________________________________
PLAINTIFF’S REPLY IN SUPPORT OF
MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a)
1 argument of counsel is not evidence.
2 E. Courts Tend to Be Lenient in Granting this Motion
3 The law strongly favors granting preference when a party is 70 years of age and is in
4 such a state of ill health that justice will not be served without a preferential trial setting. The
5 primary purpose in enacting CCP § 36(a) was to ensure an early trial date for the reasons that
6 because of their advanced age or serious medical problems, a party might die, or become
7 incapacitated before their case come to trial. See Looney, supra.
8 It is respectfully submitted that Plaintiff qualifies for an early trial date based on her
9 deteriorating medical condition meriting emergency surgery, her blindness, and her inability to
10 even give verbal consent to emergency surgery as described in the supplemental declaration of
11 her daughter previously submitted to this Court.
12 F. CCP 36(e) Allows for Trial Preference as Well
13 Should this Court find that Plaintiff’s evidence does not meet the standard demanded by
14 CCP § 36(a), Plaintiff respectfully requests that the Court invoke its power to grant this motion
15 under the CCP 36(e) in “the interests of justice.”
16 III. CONCLUSION
17 WALGREENS and its attorneys have objected to every single document request,
18 deposition notice, and even to form interrogatories approved by the Judicial Council. (See
19 Declaration of Mark L. Webb, Exhibit A.) They have done everything imaginable to delay the
20 fair progress of Plaintiff’s case. Therefore, it is no surprise that they now object again—this
21 time to Plaintiff’s just request for trial preference—especially since they would reap the profit
22 of her demise should the case drag on by means of WALGREENS benefitting by the extinction
23 of the claim for pain and suffering.
24 Plaintiff respectfully asks this Court not to reward Defendant for its dilatory tactics and
25 punish Plaintiff when she is in such dire need of a resolution of her claim. For reasons stated
26 ///
27 ///
28 ///
5
_________________________________________________________________________________________
PLAINTIFF’S REPLY IN SUPPORT OF
MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a)
1 above, Plaintiff again asks this Court for the earliest possible trial date available.
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Respectfully submitted,
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5 DATED: July 13, 2020 ______________________
Mark L. Webb, Esq.
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Attorney for Plaintiff
7 LYNETTE BREMER
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PLAINTIFF’S REPLY IN SUPPORT OF
MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a)
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Exhibit 7
A
_____________________________________________________________________________________
PLAINTIFF’S REPLY IN SUPPORT OF
MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a)
1 DECLARATION OF MARK L. WEBB
2 1. I have attempted discovery in this case on numerous different occasions, all of
3 which have been objected to by Defendant WALGREENS and its attorney Paul Caleo.
4 2. This includes each and every request for documents I have made, each and every
5 deposition I have noticed, and each interrogatory that has been propounded, even form
6 interrogatories approved by the Court. Most recently, I have noticed the deposition of their
7 verifying witness, which they have refused, necessitating a motion to compel.
8 3. In my entire experience as an attorney, I have never had such an across-the-board
9 series of objections to every single attempt I have made for discovery of evidence in a case.
10 4. Conversely, Plaintiff and I have answered each and every discovery request
11 posed by Defendant within the 30 days as required by law. This includes all medical records, all
12 interrogatory responses, and answers to every inquiry, with one exception: Defendant’s request
13 for Plaintiff’s cell phone number and cell phone records, which is objectionable as a clear
14 invasion of privacy. Plaintiff has also produced discovery responses that include a medical
15 record from Plaintiff’s treating eye doctor stating unequivocally that the lack of insulin in
16 December 19, 2020, from the defective KWIKPEN is the cause of her blindness. Defendant
17 has so delayed the progress of this case, that for the only the second time in my career, I noticed
18 my own client’s deposition to move the case along.
19 5. Over objection, I finally took the deposition of the pharmacist who dispensed the
20 defective KWIKPEN to Plaintiff. She testified she “does not remember” anything about the
21 incident which has been clearly delineated by Plaintiff’s daughter, Alexis Snelling, in her
22 declarations and in the complaint. In other words, WALGREENS’ position is that no defective
23 KWIKPEN was ever issued.
24 6. Plaintiff is currently incapacitated and unable to present a declaration on her
25 own.
26 7. In accordance with CCP § 36.5, based upon information and belief of my client’s
27 worsening condition, I declare that she is at risk of further infection and potential need for
28 further surgeries. This information and belief is based upon the fact that she continues to be
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PLAINTIFF’S
DECLARATION REPLY IN SUPPORT
OF MARK L. WEBB OF
MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a)
1 blind, living alone (other than post surgical care), had a previously existing set of surgeries in
2 2018 and 2019 with similar infections. I further state on information and belief that the
3 reoccurrence of infection in the gluteal and foot area, identical to the types of infections she had
4 before, constitute legitimate concerns for future deterioration and potential inability to
5 participate in her own trial. My personal observations of Plaintiff since the commencement of
6 this case convince me that there is substantial danger in her helping me with this case and
7 possibly even being able to appear, unless the matter is set for trial expeditiously. (See Exhibit B
8 partial discharge record from John Muir Hospital, page 3 “concern for chronic osteomyelitis and
9 recurrence of abscess.”)
10 I declare under penalty of perjury under the laws of the State of California that the
11 foregoing is true and correct.
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13 DATED: July 13, 2020 ______________________
14 Mark L. Webb, Esq.
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PLAINTIFF’S
DECLARATION REPLY IN SUPPORT
OF MARK L. WEBB OF
MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a)
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Exhibit 10
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_____________________________________________________________________________________
PLAINTIFF’S REPLY IN SUPPORT OF
MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a)
1 PROOF OF SERVICE
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STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
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4 I am over the age of 18 and not a party to the within action, my business address is 524
5 San Anselmo Avenue, San Anselmo, CA 94960.
6 On July 13, 2020, I served the foregoing document(s) described as:
7 PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREFERENCE IN SETTING
8 CASE FOR TRIAL PURSUANT TO CCP § 36(a)
9 on the interested parties in this action by placing a true copy thereof enclosed in a sealed
10 envelope addressed as follows:
11 BY MAIL: I am readily familiar with the business practice at my place of
12 business for the collection and processing of correspondence for mailing with the United States
13 Postal Service. Under that practice, correspondence so collected and processed would be
14 deposited with the United States Postal Service that same day in the ordinary course of business.
15 On this date, the above referenced correspondence, with postage thereon fully prepaid, was
16 placed for deposit at San Anselmo, California and placed for collection and mailing following
17 ordinary business practices.
18 X BY EMAIL: This document was served electronically via E-Service through One
19 Legal, see attached list.
20 I declare under penalty of perjury under the laws of the State of California that the
21 foregoing is true and correct.
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Executed this July 13, 2020 _______________________
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Beth Verdekal
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PLAINTIFF’S
PROOF REPLY IN SUPPORT OF
OF SERVICE
MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a)
1 E-SERVICE LIST
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3 Paul Caleo, State Bar No. 153925
4 Mark J. Heisey, State Bar No. 300141
5 BURNHAM BROWN
6 A Professional Law Corporation
7 P.O. Box 119
8 Oakland, California 94604-0119
9 _______
10 1901 Harrison Street, Suite 1400
11 Oakland, California 94612-3523
12 Telephone: (510) 444-6800
13 Facsimile: (510) 835-6666
14 Email: pcaleo@burnhambrown.com
15 mheisey@burnhambrown.com
16 Attorneys for Defendant WALGREEN CO.
17 (erroneously sued herein as Walgreens, Inc.)
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PLAINTIFF’S
PROOF REPLY IN SUPPORT OF
OF SERVICE
MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a)
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1 Mark L. Webb, Esq. (Bar No. 67959) 994 Clayton Street, Suite 2 2 San Francisco, California 94102 ELECTRONICALLY 3 Telephone: (415) 515-0960 F I L E D 4 mark@markwebb.com Superior Court of California, County of San Francisco 5 Attorney for Plaintiff LYNETTE BREMER 07/13/2020 Clerk of the Court BY: RONNIE OTERO 6 Deputy Clerk 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO – UNLIMITED CIVIL 10 11 LYNETTE BREMER, Case No.: CGC-20-583570 12 Plaintiff, PLAINTIFF’S REPLY BRIEF IN SUPPORT 13 OF MOTION FOR PREFERENCE IN vs. SETTING CASE FOR TRIAL PURSUANT 14 WALGREENS, INC. and DOES 1 to 50, TO CCP § 36(a) 15 Defendants. Date: July 21, 2020 16 Time: 9:30 a.m. Dept.: 206 17 18 Case Filed: March 9, 2020 Trial Date: Not Set 19 20 21 I. INTRODUCTION 22 This is a strict product liability case in which Defendant has had multiple opportunities 23 to refute Plaintiff’s claim that she received an empty, defective KWIKPEN containing no 24 insulin, causing her injuries. To date, Defendant has not denied this assertion. Currently this 25 case is primarily about damages and is not in any way a complex piece of litigation. 26 In its opposition to Plaintiff's motion under CCP § 36(a), Defendant has misled this 27 Court on several points: 28 1. WALGREENS has misstated the law on admissibility of evidence. 1 _________________________________________________________________________________________ PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a) 1 2. WALGREENS has attacked Plaintiff's proof without supplying any of its own. 2 3. WALGREENS continues to impede the progress of this case in its ongoing 3 objections to each and every discovery request to date. (See Exhibit A, Declaration of Mark 4 Webb.) 5 4. WALGREENS’ opposition does not state any valid legal precedent in support of 6 their opposition to trial preference. 7 II. POINTS AND AUTHORITIES 8 A. Plaintiff Need Only Show Her Failing Health Could Prejudice Her Case 9 Defendant is incorrect in stating that the Plaintiff need show a causal connection 10 between Defendant’s liability for Plaintiff’s dire health circumstances and the need for 11 preferential trial date. All Plaintiff need show is that her failing health, whether caused by 12 Defendant or for other reasons, calls for trial preference. Defendant has cited no authority for 13 the erroneous proposition that Plaintiff’s dire condition need to have been caused by the 14 Defendant and that is because there is no authority. It is not the law. Defendant need look no 15 further than the black letter of what the law actually states. Per CCP § 36(a): 16 (2) The health of the party is such that a preference is 17 necessary to prevent prejudicing the parties interests in the litigation. 18 19 An example of this would be if a plaintiff had been injured in a car accident and 20 developed an unrelated case of cancer that threatened the plaintiff’s ability to participate in trial. 21 These facts would meet the standard under CCP § 36(a). 22 Plaintiff submits that her blindness, which Plaintiff contends is the result of Defendant’s 23 liability, is certainly a contributing factor to her failing medical condition. Just last week, 24 because she was unable to see and therefore care for herself, she required emergency, life-saving 25 surgery for a systemic infection that began with a lesion and became life-threatening. (See 26 Exhibit B, Plaintiff’s medical records that describe her condition.) She was in such a 27 compromised state that she could not give consent before the emergency surgery such that her 28 daughter was called to give consent on a call with two nurses, acting as witnesses, as 2 _________________________________________________________________________________________ PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a) 1 the doctor sought permission to operate on her mother in an hour. 2 As stated in Looney v. Superior Court (Medical Center of North Hollywood) (1993) 16 3 Cal.App.4th 521 and 532: 4 “Such a preference is not only necessary to assure a party’s peace 5 of mind that he or she will live to see a particular dispute brought to resolution but it can also have substantive consequences. The 6 party's presence and ability to testify in person and/or assist 7 counsel may be critical to success. In addition, the nature of the 8 ultimate recovery can be adversely affected by a plaintiff's death prior to judgment.” 9 10 B. Plaintiff’s Deteriorating Physical Condition 11 Defendant, in its opposition, has tried to label Plaintiff’s physical deterioration as “loss 12 of enjoyment of life.” It is far more severe than that. Plaintiff was formerly an independent 13 woman before receiving the defective KWIKPEN, living alone and taking care of herself. She is 14 now in a nursing facility, having survived a near fatal systemic infection, is blind, and needs all 15 her meals to be provided to her with 24 hour medical care. Plaintiff submits that this is precisely 16 the type of deterioration that calls for relief under CCP § 36. 17 The recent supplemental declaration of Plaintiff’s daughter contains within it text 18 messages to and from Plaintiff’s daughter to providing doctors and nurses who conducted 19 emergency surgery. These items of evidence constitute real proof admissible to this Court, 20 unlike Defendant’s complete absence of proof and submission of mere argument of counsel. 21 Please see Gdowski v. Gdowski (2009) 175 Cal.App.4th 128,139 and Duchrow v. Forrest (2013) 22 215 Cal.App.4th 1359, 1379-1380. 23 C. An Attorney’s Declaration Is Expressly Admissible in Support of this Motion 24 Defendant’s counsel misleads the Court in contending that: 25 “Contrary to the findings required to satisfy the second prong of Code Civ. Proc., § 36(a), the Declaration of Mark L. Webb, Esq. 26 contains zero evidence [bold added for emphasis] to support a 27 finding that trial preference is necessary to prevent prejudicing Plaintiff’s interest in the litigation.” (See Opposition Brief Page 2, 28 /// 3 _________________________________________________________________________________________ PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a) 1 beginning between lines 9 and 10.) 2 In fact, the law states the exact opposite! Please see CCP § 36.5. 3 An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for 4 the party seeking preference based upon information and 5 belief as to the medical diagnosis and prognosis of any party. [Bold added for emphasis.] The affidavit is not admissible for any 6 purpose other than a motion for preference under subdivision (a) of 7 Section 36. 8 See Exhibit A, Declaration of Mark Webb, paragraph 8. 9 D. The Daughter’s Declaration Is Admissible 10 Again, Defendant misstates the law. It is fundamental that this Court is authorized to 11 take into consideration any relevant evidence presented in support of a motion. See Evidence 12 Code—EVID § 210: 13 “Relevant evidence” means evidence, including evidence 14 relevant to the credibility of a witness or hearsay declarant, [bold emphasis] having any tendency in reason to prove or 15 disprove any disputed fact that is of consequence to the 16 determination of the action. 17 Plaintiff is currently incapacitated and unable to present a declaration on her own. (See 18 Exhibit A, Declaration of Mark Webb, paragraph 8.) Plaintiff’s daughter has had, and continues 19 to have, firsthand observations of her mother’s condition that Defendant would have this Court 20 ignore, despite the exigencies of this case. 21 Furthermore, Ms. Snelling’s being involved intimately with this matter is not a new fact 22 to Defendant—she was mentioned in the original complaint (filed and served in March 2020) as 23 a vital witness. She was the one who spoke to WALGREENS when she returned the defective 24 KWIKPEN. (Despite her status in this matter Defendant has not noticed her deposition nor 25 inquired about taking it all.) Yet, Defendant discounts Ms. Snelling’s firsthand observations, and 26 attempts to dictate to this Court what is and what is not relevant. In fact, it is up to this Court to 27 decide, not counsel for WALGREENS, what is relevant and credible evidence. 28 Please see Gdowski v. Gdowski and Duchrow v. Forrest, supra, for the proposition that 4 _________________________________________________________________________________________ PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a) 1 argument of counsel is not evidence. 2 E. Courts Tend to Be Lenient in Granting this Motion 3 The law strongly favors granting preference when a party is 70 years of age and is in 4 such a state of ill health that justice will not be served without a preferential trial setting. The 5 primary purpose in enacting CCP § 36(a) was to ensure an early trial date for the reasons that 6 because of their advanced age or serious medical problems, a party might die, or become 7 incapacitated before their case come to trial. See Looney, supra. 8 It is respectfully submitted that Plaintiff qualifies for an early trial date based on her 9 deteriorating medical condition meriting emergency surgery, her blindness, and her inability to 10 even give verbal consent to emergency surgery as described in the supplemental declaration of 11 her daughter previously submitted to this Court. 12 F. CCP 36(e) Allows for Trial Preference as Well 13 Should this Court find that Plaintiff’s evidence does not meet the standard demanded by 14 CCP § 36(a), Plaintiff respectfully requests that the Court invoke its power to grant this motion 15 under the CCP 36(e) in “the interests of justice.” 16 III. CONCLUSION 17 WALGREENS and its attorneys have objected to every single document request, 18 deposition notice, and even to form interrogatories approved by the Judicial Council. (See 19 Declaration of Mark L. Webb, Exhibit A.) They have done everything imaginable to delay the 20 fair progress of Plaintiff’s case. Therefore, it is no surprise that they now object again—this 21 time to Plaintiff’s just request for trial preference—especially since they would reap the profit 22 of her demise should the case drag on by means of WALGREENS benefitting by the extinction 23 of the claim for pain and suffering. 24 Plaintiff respectfully asks this Court not to reward Defendant for its dilatory tactics and 25 punish Plaintiff when she is in such dire need of a resolution of her claim. For reasons stated 26 /// 27 /// 28 /// 5 _________________________________________________________________________________________ PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a) 1 above, Plaintiff again asks this Court for the earliest possible trial date available. 2 Respectfully submitted, 3 4 5 DATED: July 13, 2020 ______________________ Mark L. Webb, Esq. 6 Attorney for Plaintiff 7 LYNETTE BREMER 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 _________________________________________________________________________________________ PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 7 A _____________________________________________________________________________________ PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a) 1 DECLARATION OF MARK L. WEBB 2 1. I have attempted discovery in this case on numerous different occasions, all of 3 which have been objected to by Defendant WALGREENS and its attorney Paul Caleo. 4 2. This includes each and every request for documents I have made, each and every 5 deposition I have noticed, and each interrogatory that has been propounded, even form 6 interrogatories approved by the Court. Most recently, I have noticed the deposition of their 7 verifying witness, which they have refused, necessitating a motion to compel. 8 3. In my entire experience as an attorney, I have never had such an across-the-board 9 series of objections to every single attempt I have made for discovery of evidence in a case. 10 4. Conversely, Plaintiff and I have answered each and every discovery request 11 posed by Defendant within the 30 days as required by law. This includes all medical records, all 12 interrogatory responses, and answers to every inquiry, with one exception: Defendant’s request 13 for Plaintiff’s cell phone number and cell phone records, which is objectionable as a clear 14 invasion of privacy. Plaintiff has also produced discovery responses that include a medical 15 record from Plaintiff’s treating eye doctor stating unequivocally that the lack of insulin in 16 December 19, 2020, from the defective KWIKPEN is the cause of her blindness. Defendant 17 has so delayed the progress of this case, that for the only the second time in my career, I noticed 18 my own client’s deposition to move the case along. 19 5. Over objection, I finally took the deposition of the pharmacist who dispensed the 20 defective KWIKPEN to Plaintiff. She testified she “does not remember” anything about the 21 incident which has been clearly delineated by Plaintiff’s daughter, Alexis Snelling, in her 22 declarations and in the complaint. In other words, WALGREENS’ position is that no defective 23 KWIKPEN was ever issued. 24 6. Plaintiff is currently incapacitated and unable to present a declaration on her 25 own. 26 7. In accordance with CCP § 36.5, based upon information and belief of my client’s 27 worsening condition, I declare that she is at risk of further infection and potential need for 28 further surgeries. This information and belief is based upon the fact that she continues to be 18 _____________________________________________________________________________________ PLAINTIFF’S DECLARATION REPLY IN SUPPORT OF MARK L. WEBB OF MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a) 1 blind, living alone (other than post surgical care), had a previously existing set of surgeries in 2 2018 and 2019 with similar infections. I further state on information and belief that the 3 reoccurrence of infection in the gluteal and foot area, identical to the types of infections she had 4 before, constitute legitimate concerns for future deterioration and potential inability to 5 participate in her own trial. My personal observations of Plaintiff since the commencement of 6 this case convince me that there is substantial danger in her helping me with this case and 7 possibly even being able to appear, unless the matter is set for trial expeditiously. (See Exhibit B 8 partial discharge record from John Muir Hospital, page 3 “concern for chronic osteomyelitis and 9 recurrence of abscess.”) 10 I declare under penalty of perjury under the laws of the State of California that the 11 foregoing is true and correct. 12 13 DATED: July 13, 2020 ______________________ 14 Mark L. Webb, Esq. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 9 _____________________________________________________________________________________ PLAINTIFF’S DECLARATION REPLY IN SUPPORT OF MARK L. WEBB OF MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 10 B _____________________________________________________________________________________ PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a) 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO 3 4 I am over the age of 18 and not a party to the within action, my business address is 524 5 San Anselmo Avenue, San Anselmo, CA 94960. 6 On July 13, 2020, I served the foregoing document(s) described as: 7 PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PREFERENCE IN SETTING 8 CASE FOR TRIAL PURSUANT TO CCP § 36(a) 9 on the interested parties in this action by placing a true copy thereof enclosed in a sealed 10 envelope addressed as follows: 11 BY MAIL: I am readily familiar with the business practice at my place of 12 business for the collection and processing of correspondence for mailing with the United States 13 Postal Service. Under that practice, correspondence so collected and processed would be 14 deposited with the United States Postal Service that same day in the ordinary course of business. 15 On this date, the above referenced correspondence, with postage thereon fully prepaid, was 16 placed for deposit at San Anselmo, California and placed for collection and mailing following 17 ordinary business practices. 18 X BY EMAIL: This document was served electronically via E-Service through One 19 Legal, see attached list. 20 I declare under penalty of perjury under the laws of the State of California that the 21 foregoing is true and correct. 22 Executed this July 13, 2020 _______________________ 23 Beth Verdekal 24 25 26 27 28 1 11 _____________________________________________________________________________________ PLAINTIFF’S PROOF REPLY IN SUPPORT OF OF SERVICE MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a) 1 E-SERVICE LIST 2 3 Paul Caleo, State Bar No. 153925 4 Mark J. Heisey, State Bar No. 300141 5 BURNHAM BROWN 6 A Professional Law Corporation 7 P.O. Box 119 8 Oakland, California 94604-0119 9 _______ 10 1901 Harrison Street, Suite 1400 11 Oakland, California 94612-3523 12 Telephone: (510) 444-6800 13 Facsimile: (510) 835-6666 14 Email: pcaleo@burnhambrown.com 15 mheisey@burnhambrown.com 16 Attorneys for Defendant WALGREEN CO. 17 (erroneously sued herein as Walgreens, Inc.) 18 19 20 21 22 23 24 25 26 27 28 2 12 _____________________________________________________________________________________ PLAINTIFF’S PROOF REPLY IN SUPPORT OF OF SERVICE MOTION FOR PREFERENCE IN SETTING CASE FOR TRIAL PURSUANT TO CCP § 36(a)