Gerald R. Cernik and Cinderella Cernik v. 3M Company, et al.

(Spring Street Courthouse: Dept. 14) August 28, 2026 DEPARTMENT 14 LAW AND MOTION RULINGS

STATE OF CALIFORNIA¿ ¿ FOR THE COUNTY OF LOS ANGELES .. DEPARTMENT 14 ¿ ¿ GERALD R. CERNIK and CINDERELLA CERNIK, Plaintiffs,¿ v. 3M COMPANY, et al., ¿ Defendants.¿¿ | Case No. 26STCV16367 ¿¿¿¿ Hearing Date: August 28, 2026 Time: 9:00 a.m. ¿ [TENTATIVE] ORDER RE: ¿ PLAINTIFFS' MOTION FOR TRIAL PREFERENCE | I.

Background

On May 21, 2026, Plaintiffs Gerald E. and Cinderella Cernik (collectively, "Plaintiffs") filed their complaint for personal injury alleging Mr. Cernik, who is 79 years old, developed malignant mesothelioma from occupational exposure to asbestos and asbestos-containing electric and electronic materials products and from direct and indirect non-occupational exposure to asbestos-containing cosmetic talcum-powder products.

On July 31, 2026, Plaintiffs filed this motion for trial preference under Code of Civil Procedure section 36, subdivision (a). Plaintiffs argue that Mr. Cernik is 79 years old and his health is such that preference is necessary to prevent prejudicing his interests in the litigation. Plaintiffs request a trial be set no later than December 28, 2026.

On August 17, 2026, Defendant Block Drug Company, Inc. ("BDCI") filed an opposition. BDCI opposed the motion on the grounds that Plaintiffs have not presented sufficient evidence that Mr. Cernik's health is such that preference is necessary to prevent prejudicing his interests in the litigation. Alternatively, BDCI argues that if the court were to grant preference, a trial 120 days from the date of this hearing is appropriate.

Defendants Rockwell Automation, Inc., Schneider Electric USA, Inc., and Paramount Global filed untimely joinders to BDCI's opposition on August 18 and 19, 2026.

Plaintiffs replied on August 20, 2026. Plaintiffs argue that preference under section 36, subdivision (a) is mandatory and that BDCI failed to provide evidence that Mr. Cernik's health is such that preference is not necessary to prevent prejudice. Plaintiffs presented sufficient evidence to show that Mr. Cernik's health is such that preference is necessary to prevent prejudicing his interests in the litigation.

Therefore, Plaintiffs' motion for trial preference is granted. The parties are to meet and confer regarding appropriate conditions for a trial setting order. The court is dark the last two weeks of December. Therefore, the court will grant the motion as of September 4, 2026. The court sets trial for Monday, January 4, 2027, at 9:00 A.M. The court sets a status conference on Monday, November 30, 2026 at 9:00 A.M., and sets the Final Status conference for Monday, December 14, 2026, at 9:00 A.M. A status conference for the proposed trial setting order is set for Tuesday, September 22, 2026, at 9:00 A.M. Plaintiffs are ordered to give notice. II.

Discussion

A. Legal Standards

A party who is over 70 years old may petition the court for a preference for trial date, which the court shall grant if it makes both of the following findings: (1) the party has a substantial interest in the action as a whole; and (2) the health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. (Code Civ. Proc., Sec. 36, subd. (a).)

An affidavit submitted in support of a motion for preference under this subdivision may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. (Id., Sec. 36.5.)

"Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party's attorney, or upon a showing of good cause stated in the record." (Id., Sec. 36, subd. (f).)

"Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party." (Ibid.)

B.

Analysis

Mr. Cernik is seventy-nine years old and was diagnosed with malignant mesothelioma on January 3, 2026. (Gilson Decl., P.P. 2-4; Index of Exhibits, Exh. A.) Mr. Cernik has a history of cancer diagnoses. (Id., at P. 13.) He was previously diagnosed with lymph node positive prostate cancer in 1998, which was initially treated by prostatectomy, but was later treated with radiation after reoccurrence in 2018. (Ibid.) And in 2019, Mr. Cernik was successfully treated for "a minimally invasive adenocarcinoma in his right lung via segmentectomy." (Ibid.)

At the time of Mr. Cernik's most recent diagnosis, he had been admitted to the hospital with acute respiratory failure. (Id., at P. 14.) A CT scan found "the presence of a left pleural effusion with adjacent atelectasis of his left lung, along with bilateral pleural calcification and scarring in both the upper and lower lobes of his right lung." (Id.; Index, Exh. A)

On March 30, 2026, Mr. Cernik began chemotherapy with pemetrexed, carboplatin, and pembrolizumab, which was concluded on June 27. (Id., at P. 15.)

On May 29, 2026, Mr. Cernik followed up with his doctor, during which time he reported that his pain level was at a 6 and that "he has generalized fatigue" and "shortness of breath with exertion." (Id., at P. 19; Index, Exh. C.) The physical exam, however, was normal and a review of Mr. Cernik's prior chest CT found that the "moderate-sized left pleural effusion with adjacent atelectasis of the left lung" has "markedly decreased in size compared to prior exam." (Ibid.) Mr. Cernik was also prescribed continued use of Percocet or Hydrocodone/acetaminophen 5/325 as needed for pain. (Ibid.)

In a follow-up two weeks later, Mr. Cernik's doctor noted that "[h]e has more fatigue [] and weakness needing a walker...[and] [d]oes have shortness of breath with exertion." (Id., at P. 21; Index, Exh. D.) The report also noted that Mr. Cernik suffers from anemia due to antineoplastic chemotherapy. (Ibid.)

On June 24, 2026, Mr. Cernik was again seen for chest pain and shortness of breath and cough. (Id., at P. 23; Index, Exh. E.) During the physical exam, Mr. Cernik's chest and auscultation of lungs and heart were found to be abnormal and the doctor noted that he had lost weight. (Ibid.) A plan to manage Mr. Cernik's COPD was also developed. (Ibid.)

On July 10, 2026, during a pre-chemo follow-up, Mr. Cernik stated that his pain and fatigue levels were at a 10 and his chemotherapy was postponed, during which time he was given a blood transfusion. (Id., at P. 25; Index, Exh. F.)

Mr. Cernik indicated to his counsel on June 28, 2026, that he would no longer pursue any additional courses of treatment due to chemotherapy's severe side effects. (Id., at P. 26.) Mr. Cernik has been "prescribed palliative care," but had not yet initiated hospice care as of the declaration's filing. (Ibid.)

Ms. Gilson further states that Mr. Cernik's "condition has visibly deteriorated" between early June and the motion's filing; Mr. Cernik "can no longer maintain the energy to speak about his case for more than one hour before literally falling asleep in front of the computer. (Id., at P. 27.)

Counsel opines that, in her professional opinion as a litigator with 17 years of experience exclusively in malignant mesothelioma cases, Mr. Cernik "will not be capable of surviving until trial, much less meaningfully participating in same, without a preferential trial setting here. His mental and physical capacity has diminished significantly over the course of several weeks and he is no longer receiving any treatment which could prolong his life or slow disease progression." (Id., at P. 28.)

BDCI is the only Defendant to substantively oppose Plaintiffs' motion. In opposition, BDCI argues that Plaintiffs have failed to meet the statute's requirements: "Neither Mr. Cernik nor his counsel have the medical knowledge to know the extent of his illness, and his ability to participate meaningfully as a result of said illness or how his illness will impact his ability to participate. The inability of Plaintiffs' to provide any evidence in their declaration aside from overbroad statements of past experiences with cancer, alleged ailments indicate that preference is not necessary in this case.

In considering the totality of Plaintiffs' alleged evidence, there is no evidence provided that Mr. Cernik's ability to meaningfully participate in the trial will be affected should a motion for preference not be granted. Mr. Cernik and his attorney's declaration are defunct in providing key information other than to say he is an elderly man suffering the effects of old age and has had prior instances of cancer. The code has established that being elderly does not establish trial is necessary." (Opp., at p. 3 [emphasis in original].)

BDCI further argues that Mr. Cernik's and his attorney's declarations "fail to establish that Plaintiff's health is in immediate peril or that his present condition puts him at imminent risk of being unable to participate meaningfully at trial in this matter." (Id., at p. 4.) Pointing to the attached exhibits, BDCI argues that the last available medical record is from July 2026 and thus does not offer the required information establishing Mr. Cernik's health is such that preference is necessary to prevent prejudicing his interests. (Ibid.)

The court notes that while Plaintiffs' counsel has filed a declaration with the operative motion, Plaintiffs have not.

In reply, Plaintiffs argue that BDCI's opposition "puts forth no objections of any weight or substance." (Reply at p. 3.) Plaintiffs also submitted new medical reports from July 30 and August 15, 2026. (Index of Exhibits to Reply.)

The July 30 th report indicates in relevant part: (1) "[p]rogressive left-sided pleural thickening consistent with mesothelioma. Prevascular mediastinal adenopathy may reflect nodal metastasis versus active adenopathy;" (2) "[l]eft upper lobe interlobular septal thickening, nodular in appearance such that lymphangitic carcinomatosis is not excluded;" (3) "[s]cattered bilateral upper lung parenchymal scarring with traction bronchiectasis;" (4) "[m]oderate layering right-sided pleural effusion with areas of pleural calcification;" and (5) "[r]ight-sided lung scarring." (Id., at Exh. A.) Mr. Cernik was found to "still [have] a lot of swelling in his legs...[with] ongoing pain in his back and chest." (Ibid.) The report also states that Mr. Cernik requested a home health referral. (Ibid.)

Lastly, Mr. Cernik received a blood transfusion on August 15. (Id., at Exh. B.) The court notes that BDCI was not given the opportunity to respond to this new evidence filed in reply; however, the evidence does not have an effect on the outcome of this motion.

Counsel also declares that on August 11 and 12, 2026, Mr. Cernik's two-hour direct examination was taken during two deposition sessions because he is "taking a level of pain killers to control his pain which make[s] it a challenge to stay conscious for longer than an hour at a time." (Gilson Reply Decl., P.P. 4-5.) Thus, Mr. Cernik's deposition will likely proceed, at most, an hour at a time. (Id., at P. 6.)

The evidence before the court is sufficient to establish that Mr. Cernik is entitled to a trial preference under Code of Civil Procedure section 36, subdivision (a). There is no dispute that Mr. Cernik's age is above the threshold required under the statute, or that he has a substantial interest in the litigation. The only issue in dispute is whether his health is such that his interest in the litigation is likely to be prejudiced in the absence of trial preference.

The court finds that the evidence presented is sufficient to satisfy this burden. The declarations of Ms. Gilson and attached medical records are sufficient to show that Mr. Cernik's current symptoms and the likely progression of his symptoms given the absence of viable treatment will impact his testimonial capacities to his prejudice.

For instance, counsel states that Mr. Cernik's "condition has visibly deteriorated" between early June and the motion's filing and that he "can no longer maintain the energy to speak about his case for more than one hour before literally falling asleep in front of the computer. (Gilson Decl., P. 27.) Counsel reiterated this point in her declaration in support of reply. (Gilson Reply Decl., P.P. 4-5 ["On August 11 and 12, 2026, it took two deposition sessions to complete under two hours of direct examination by his counsel. Mr. Cernik is taking a level of pain killers to control his pain which make it a challenge to stay conscious for longer than an hour at a time."].)

This, paired with the evidence that Mr. Cernik lacks viable treatment options and has requested a hospice referral, is sufficient to persuade the court that his health is such that Mr. Cernik's interest in the litigation will be prejudiced without trial preference.

Moreover, Plaintiffs were not required to present a declaration from a treating physician. (Code Civ. Proc., Sec. 36.5 ["An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36."].) Counsel's declarations are sufficient.

Accordingly, Plaintiffs' motion for trial preference is granted. Plaintiffs' motion indicates that they are willing to agree to certain stipulations and to extend discovery deadlines past the statutory cut-offs. (Motion at pp. 9-10.) The court expects the parties to meet and confer regarding the appropriate conditions for a proposed trial setting order. If there are disputes as to the appropriate conditions, the court will rule on these disputes at the status conference regarding the trial setting order. III.

Conclusion

Plaintiffs' motion for trial preference is granted. The parties are to meet and confer regarding appropriate conditions for a trial setting order. The court will grant the motion as of September 4, 2026. The court sets trial for Monday, January 4, 2027, at 9:00 A.M. The court sets a status conference on Monday, November 30, 2026 at 9:00 A.M., and sets the Final Status conference for Monday, December 14, 2026, at 9:00 A.M. A status conference for the proposed trial setting order is set for Tuesday, September 22, 2026, at 9:00 A.M. Plaintiffs are ordered to give notice. | Home -->)" -->