| Case | County / Judge | Motion | Ruling | Indexed | Hearing |
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Motion for trial preference
LINE # CASE # CASE TITLE RULING LINE 1 20CV362060 Echeverria v. Tapestry, Inc. dba Coach See Line 1 for tentative ruling. LINE 2 20CV373916 Chai v. Velocity Investments, LLC, et al. See Line 2 for tentative ruling. LINE 3 23CV411280 Blake v. Old Crow Smokehouse Orange, See Line 3 for tentative ruling. LLC, et al. (Class Action/PAGA) LINE 4 23CV422390 Brown v. Jazz Pharmaceuticals, Inc. See Line 4 for tentative ruling. (Class Action) LINE 5 23CV427314 Good Samaritan Hospital, L.P., et al. v. See Line 5 for tentative ruling.
Kaiser Foundation Health Plan, Inc. LINE 6 25CV464775 Anthony Turiello vs Piping Systems See Line 6 for tentative ruling. Engineering Inc. LINE 7 25CV471436 Francisco Guevara Vs Westcoast See Line 7 for tentative ruling. Plumbing Service, Inc. LINE 8 25CV481717 Heather Buxbaum vs Stanford Health Unopposed motion for Care admission pro hac vice of Attorney Lange is GRANTED. No appearance necessary. Counsel to submit Proposed Order. LINE 9 25CV481717 Heather Buxbaum vs Stanford Health Unopposed motion for Care admission pro hac vice of Attorney Sukert is GRANTED.
No appearance necessary. Counsel to submit Proposed Order. LINE 10 25CV483219 Herlinda Estrada et al vs Chattem, Inc., See Line 10 for tentative individually, as alter ego of, and as ruling. successor-in-interest to TH et al LINE 11 LINE 12 LINE 13
Calendar Line 10
Case Name: Estrada et al. v. Chattem, Inc. et al. Case No.: 25CV483219
This is a personal injury action alleging damages due to exposure to asbestos, brought by plaintiffs Herlinda Meza Estrada and her husband, Hector Guadalupe Estrada, against multiple defendants.
Before the Court is Plaintiffs’ Amended Motion for Trial Preference under Code of Civil Procedure section 36. Three sets of defendants oppose the motion: (1) the Retailer Defendants (Albertsons, CVS, Longs, Safeway, Vons, Walgreens); (2) Morse TEC LLC (successor to Borg-Warner); and (3) Vi-Jon, LLC (filed as joint defense opposition).
For the reasons stated below, the motion is GRANTED under both Code of Civil Procedure section 36(a) and 36(d). Trial is tentatively set for September 14, 2026, subject to confirmation at the Case Management Conference set for May 20, 2026, at 2:30 p.m. in Department 19. The Court further orders the parties to consolidate and advance the hearing dates for the pending pleading motions (demurrers and motions to strike) so that all such motions are heard well in advance of the trial date.
I.
Background
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On January 21, 2026, the Court entered an order deeming the case complex within the meaning of California Rules of Court, rule 3.400, and staying responsive pleading and discovery deadlines until the initial Case Management Conference. Plaintiffs filed objections to the stay on January 29, 2026, advising the Court of Ms. Estrada’s terminal condition and signaling their intent to seek a preferential trial date. Defendants did not join those objections and did not separately object.
On April 2, 2026, the Court granted Plaintiffs’ Ex Parte Application for leave to file the present Motion. The initial stays imposed in the Court’s Complexity Order were lifted by the Court’s Order of that date, and confirmed at the April 22, 2026 Case Management Conference. At that time the Court also directed counsel to meet and confer regarding the consolidation and coordination of pleading motions and set a Case Management Conference for May 20, 2026 at 2:30 p.m. concurrent with the hearing on the present Motion.
II.
Legal Standard
Code of Civil Procedure section 36, subdivision (a), provides that a party over age 70 is entitled to preference if the court finds that (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.” Thus, “[o]n petition of any party over age 70, section 36, subdivision (a), provides that the granting of calendar preference is mandatory in some circumstances. [Citations.]” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 538 (Fox).)
Section 36, subdivision (d), gives the court discretion to grant trial preference upon “clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.”
Section 36, subdivision (e), provides that counsel’s declaration may support the motion and that the court must consider the overall interests of justice. Under Section 36, subdivision (f), if the court grants the motion for preference, it must set the matter for trial within 120 days of the date of the order, with limited continuances available for the physical disability of a party or party’s attorney, “or upon a showing of good cause stated in the record.”
III. The Parties’ Positions
A. Plaintiffs
Plaintiffs argue that preference is mandatory under Section 36(a) because Ms. Estrada is over 70 and her health is such that preference is necessary to prevent prejudice to her interest in this action, that the declaration of Eric R. Presser (“Presser Decl.”) independently satisfies Section 36(d), and that the interests of justice independently support preference under Section 36(e). (See Memorandum, pp. 12:9–16:11.) They rely principally on Fox, supra, 21 Cal.App.5th at p. 535, Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085, and Rice v. Superior Court (1982) 136 Cal.App.3d 81, 89 (Rice), for the proposition that, where Section 36(a) is satisfied, the trial court has no discretion to weigh competing interests.
B. Retailer Defendants
The Retailers concede that Ms. Estrada is over 70 but argue that: the “interests of justice” disfavor preference because the case was stayed until April 22, 2026; eight motions on the pleadings (four demurrers, four motions to strike) are set for October and November 2026; no depositions have been taken; and the statutory notice period for their intended motions for summary judgment (Code Civ. Proc., § 437c) cannot be honored within 120 days absent shortened notice. (Retailer Defendants’ Opposition, pp. 1:2–20; 4:4–5:5; 6:12–23.) They request denial without prejudice or, alternatively, a trial setting order with conditions. (Id. at pp. 7:1–8:17.)
C. Morse TEC LLC
Morse TEC also concedes that Ms. Estrada is over 70 but contends Plaintiffs have not sufficiently shown preference is necessary to prevent prejudice or based upon the medical doubt Ms. Estrada’s survival beyond six months. (Morse TEC Opposition, p. 1:11–18.) It attacks the Presser declaration as based on telephonic contact with Plaintiff’s son acting as interpreter and not corroborated by treating-physician testimony. (Id. at p. 3:3–8.) Morse TEC also emphasizes a March 2, 2026, emergency-department note (presenting for a low potassium reading) describing Plaintiff as in her “usual state of health.” (Id. at p. 3:9–21.) Morse TEC further stresses that it was added by Doe amendment and the defendants bear the burden under Civil Code section 1431.2 of proving alternative exposures. (Id. at pp. 2:2–6, 4:13–28.)
D. Vi-Jon, LLC (Joint Defense)
Defendant Vi-Jon contends that Plaintiffs’ supporting evidence does not meet the standard for granting preference under the circumstances. (Vi-Jon Opposition, pp. 1:19–22, 2:22–3:20.) Vi-Jon’s opposition sets forth a substantive medical challenge by arguing there is evidence that Ms. Estrada has a genetic mutation (BAP1) that slows the impact of mesothelioma allowing for longer life expectancy. (Id. at pp. 4:24–7:8.) Vi-Jon submits peerreviewed literature from Dr. Angela Bononi and Dr. Michele Carbon indicating that mesotheliomas with BAP1 mutations may be substantially less aggressive, with median survival of six to seven years. (Id. at pp. 5:14–6:2; Declaration of Angela Hampton, Ex. B and C.) Vi-Jon argues Dr. Presser is silent on this issue and the motion therefore lacks “clear and convincing” medical documentation under Section 36(d). (Id. at pp. 2:5–12; 3:8–13, 6:8–7:8.)
IV.
Discussion
A. Evidence Presented and Factual Findings
Plaintiffs present evidence that Plaintiff Herlinda Estrada was born September 18, 1953, and is 72 years old. (Declaration of Angelina M. Austin in Support of Plaintiffs’ Amended Motion for Preference (“Austin Decl.”), ¶ 4.) No defendant disputes that Ms. Estrada is over the age of 70. Ms. Estrada is the injured plaintiff seeking redress for personal injuries she suffered because of exposure to Defendants’ products. As the directly injured party, she has a substantial interest in this action.
In or around February 2025, Ms. Estrada was diagnosed with malignant pleural mesothelioma, epithelioid type, by core needle biopsy at Scripps Memorial Hospital on February 19, 2025. (Presser Decl., ¶ 12 & Ex. 4.) Mesothelioma is an incurable and ultimately fatal cancer. (Presser Decl., ¶¶ 6–9; Hamilton v. Asbestos Corp. (1997) 22 Cal.4th 1127, 1136.) Ms. Estrada has undergone six rounds of Carboplatin-Pemetrexed chemotherapy beginning March 13, 2025, and on August 22, 2025 underwent a left thoracotomy with pleurectomy, pulmonary decortication, rib resection, hemidiaphragm resection with mesh reconstruction, and pericardial resection with mesh reconstruction. (Presser Decl., ¶ 13.)
She was hospitalized for twenty days in October 2025 with pneumonia, multiple pulmonary emboli, and right heart failure requiring intubation, and was hospitalized again in November and December 2025, and on March 2, 2026 for critically low potassium. (Id. at ¶¶ 13–14.)
On April 3, 2026, an updated PET-CT scan showed likely metastasis of Ms. Estrada’s mesothelioma to intra-thoracic and para-aortic lymph nodes. (Presser Decl., ¶ 16 & Ex. 12.) Ms. Estrada’s symptoms have progressed and include constant left chest wall pain radiating to her back and abdomen, shortness of breath on minimal exertion (limited to walking approximately 20–30 feet), right foot drop, right hand numbness, loss of appetite, fragmented sleep, profound fatigue, and inability to perform routine daily activities. (Presser Decl., ¶¶ 15, 17, 19.)
Dr. Eric R. Presser, M.D., a board-certified thoracic and cardiac surgeon with more than eighteen years of experience treating mesothelioma patients, reviewed Ms. Estrada’s medical records and personally consulted with her by telephone on March 3, 2026 and April 21, 2026. (Presser Decl., ¶¶ 3–4, 10–11, 17.) Based on his review of the records, his clinical experience, and his telephonic consultations, Dr. Presser opines, to a reasonable degree of medical certainty, that there is substantial medical doubt as to Ms. Estrada’s survival beyond six months from the date of his April 21, 2026 declaration. (Presser Decl., ¶¶ 18–21.)
B. Preference is Mandatory Under Code of Civil Procedure Section 36(a)
As set forth above, Code of Civil Procedure section 36(a) provides that “[a] party to a civil action who is over 70 years of age may petition the court for preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” The statute’s use of “shall” makes preference mandatory once both findings are made. (Rice, supra, 136 Cal.App.3d at p. 89; Koch-Ash v.
Superior Court (1986) 180 Cal.App.3d 689, 694 [“Rice held that a matter of statutory construction section 36 must be deemed to be mandatory and absolute in its application if plaintiffs qualify under subdivision (a) thereof”]; Fox, supra, 21 Cal.App.5th at 535 [“[w]here a party meets the requisite standard for calendar preference under [section 36(a)], preference must be granted. No weighing of interests is involved.”].) “The idea that due process concerns are in play in baseless.” (Fox, supra, 21 Cal.App.5th at p. 535, fn. 3.)
Section 36(a) does not require a treating physician’s declaration; an attorney’s declaration based on information and belief as to the moving party’s diagnosis and prognosis is sufficient. (Code Civ. Proc., § 36.5; Fox, supra, 21 Cal.App.5th at p. 534.) Each element of section 36(a) is established here. First, it is undisputed that Ms. Estrada is over the age of 70. (Austin Decl., ¶ 4; Morse TEC Opp. 1:13–14 [“MORSE TEC does not dispute that Mrs. Estrada is over the age of 70”]; Retailer Opp. 4:18–19 [“Although Ms.
Estrada is over 70 years of age under 36 (a)”].) Second, as the injured plaintiff in a personal injury action arising out of her own asbestos-related mesothelioma, Ms. Estrada plainly has a substantial interest in this action as a whole. Third, on the unrebutted medical evidence, her health is such that preference is necessary to prevent prejudicing her interest in the litigation: she suffers from a terminal, metastatic cancer, has been hospitalized repeatedly, has progressive symptoms that materially impair her ability to participate in the case, and faces a substantial risk that her ability to assist counsel and provide testimony will be further compromised in the months ahead.
Defendants do not submit any competing medical evidence. Morse TEC offers no medical declaration at all, instead citing a single line from a March 2, 2026 emergency department triage note (“feeling well”) without acknowledging that the visit was itself an emergency admission for critically low potassium on the same day. Vi-Jon’s “Joint Defense Opposition” rests on attorney argument concerning a hypothetical BAP1 mutation and lifeexpectancy literature. The Court finds that argument speculative on this record and insufficient to rebut the findings of Dr.
Presser who consulted with Ms. Estrada and reviewed her records. The Retailer Defendants submit no medical evidence at all, instead resting on casemanagement and due-process grounds. Argument of counsel is not evidence and cannot rebut the sworn opinion of a board-certified thoracic surgeon. (See Fox, supra, 21 Cal.App.5th at p. 534.) The Court therefore finds that Plaintiffs have established each element of section 36(a) and that preference is mandatory.
C. Preference is Independently Warranted under Section 36(d)
Although the Court need not reach section 36(d) given its conclusion under section 36(a), it does so here because Plaintiffs have invoked that subdivision and because the Court’s findings under section 36(d) provide an additional, independent basis for preference. Section 36(d) authorizes the Court to grant preference where the moving party presents “clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and. . . the interests of justice will be served by granting the preference.”
Plaintiffs have submitted clear and convincing medical documentation satisfying section 36(d). The record includes contemporaneous treating-physician records, together with the Declaration of Dr. Eric R. Presser, a board-certified thoracic and cardiac surgeon with over eighteen years of clinical experience treating mesothelioma patients. (Presser Decl., ¶¶ 3–4, 10–17 and Ex. 1–12.) Dr. Presser personally consulted with Ms. Estrada on two occasions and considered her diagnosis, treatment history, current symptoms, and imaging in concluding, to a reasonable degree of medical certainty, that there is substantial medical doubt of her survival beyond six months from his April 21, 2026 declaration. (Id. at ¶¶ 18–21.)
Defendants’ challenges to that opinion fail to persuade the Court. The fact that Dr. Presser is not Ms. Estrada’s treating physician goes to the weight of his testimony, not its admissibility, and section 36(d) does not require a treating-physician declaration. Vi-Jon’s BAP1 hypothesis is not supported by competent medical evidence because the pathology report on which Vi-Jon itself relies shows that no germline analysis was completed. Attorney citation of the Bononi and Carbone articles, and selected deposition testimony from another case, cannot supplant a qualified medical opinion based on this patient’s actual clinical course.
Even taken on its own terms, the Bononi literature reports a median survival of six to seven years for confirmed germline carriers, with substantial variability; it does not refute Dr. Presser’s individualized opinion concerning a patient who has already metastasized, has experienced multiple post-operative emergencies, and is in clinical decline.
Furthermore, the interests of justice support preference. Ms. Estrada has a substantive right to her day in court while alive. (Rice v. Superior Court (1982) 136 Cal.App.3d 81, 89.) Permitting routine civil delay to deprive her of that opportunity would be inconsistent with the Legislature’s express purpose in enacting section 36. (Looney v. Superior Court (1993) 16 Cal.App.4th 521, 532 [“[t]here can be little argument that section 36 was enacted for the purpose of assuring that an aged or terminally ill plaintiff would be able to participate in the trial of his or her case and be able to realize redress upon the claim asserted”].) “This is not only the obvious intent of the words used in the statute, it is borne by the legislative history.” (Id. at p. 532, fn. 12.) The Court accordingly finds that Plaintiffs have independently established the requirements of section 36(d).
V. Consolidation and Advancement of Pleading Motions
At the April 22, 2026 Case Management Conference, the Court directed all defense counsel to meet and confer regarding the consolidation and coordination of pleading motions (including demurrers and motions to strike) and to propose earlier hearing dates so that those motions could be resolved before trial. The Court reaffirms that directive and orders as follows:
• Defendants shall meet and confer in good faith no later than ten (10) calendar days after the date of this Order regarding the consolidation of all currently pending and contemplated demurrers and motions to strike. Defendants whose pleading challenges raise common grounds shall, to the maximum extent practicable, file a single consolidated demurrer and/or a single consolidated motion to strike. Defendants who decline or are unable to join the consolidated filing shall so state in writing to Plaintiffs and to the Court.
• All currently set hearing dates for demurrers and motions to strike are VACATED. Within fourteen (14) calendar days after the date of this Order, the parties shall jointly submit to Department 19 a proposed schedule for the hearing of consolidated pleading motions on the earliest reasonably available dates. Absent good cause, all pleading motions shall be heard no later than sixty (60) calendar days before the trial date set by the Court.
• Briefing on consolidated pleading motions shall proceed on the time periods set forth in Code of Civil Procedure section 1005(b), unless the parties agree to or the Court orders a different schedule that preserves resolution of all such motions in advance of trial.
• Any party who fails to comply with the meet-and-confer and consolidation requirements of this Order shall not be heard to argue, in any subsequent application, that the existence of pending pleading motions constitutes good cause to continue trial beyond the date set by the Court under section 36(f).
VI.
Conclusion
For the reasons set forth above, the Court tentatively rules as follows:
1. Plaintiffs’ Amended Motion for Trial Preference is GRANTED under Code of Civil Procedure section 36, subdivisions (a) and (d).
2. Subject to confirmation at the Case Management Conference set for May 20, 2026 at 2:30 p.m. in Department 19, trial in this matter is TENTATIVELY SET for September 14, 2026. The Court finds good cause stated on the record, under Code of Civil Procedure section 36, subdivision (f), to set the trial date within the foregoing timeframe.
3. All currently set hearing dates for demurrers and motions to strike are VACATED. Defendants shall meet and confer regarding consolidation of pleading motions and shall submit a joint proposed hearing schedule consistent with Section V of this Order. Absent good cause, all pleading motions shall be heard no later than 60 days before the trial date.
4. The Court will address at the Case Management Conference any further case- management issues, including, without limitation, expert disclosure deadlines, motions for summary judgment, deposition scheduling and locations, product- identification disclosures, and discovery cutoffs.
Plaintiffs’ counsel shall prepare and give notice of this order in accordance with California Rules of Court, rule 3.1312, and Code of Civil Procedure section 1019.5.
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