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Court of Appeal of California, First Appellate District, Division Four
March 20, 2018, Opinion Filed
[**494] STREETER, J.—
Petitioners Ardella and Robert Fox (the Foxes) seek a writ of mandate compelling the superior court to grant their motion for trial preference and set a trial date within 120 days of this court's issuance of writ relief. We requested opposition to the petition and advised the parties we may grant a peremptory writ under Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180 [203 Cal. Rptr. 626, 681 P.2d 893] (Palma). Only one of 18 defendants opposed the Foxes' petition. Having reviewed the petition, opposition, and supporting documentation, we shall grant the writ and direct the superior court to schedule a trial within 120 days.
II. FACTUAL AND PROCEDURAL BACKGROUND
The Foxes filed this action in February 2017, claiming that Ms. Fox, age 81, sustained personal injuries as a result of her exposure to asbestos and asbestos-containing [***2] products many years ago, from approximately 1954 through 1963. They named 18 parties as defendants. Out of concern for Ms. Fox's declining health, the Foxes filed a motion for trial preference under [*532] Code of Civil Procedure section 36, subdivision (a),3 seeking preference on the trial calendar. [**495] The basis for the claimed preference was that Ms. Fox now suffers from stage IV lung cancer and various related ailments. Among the materials supporting the preference motion was a declaration from the Foxes' attorney, David Donadio, reporting not only has the cancer metastasized to Ms. Fox's femur, clavicle, and spine, but she also suffers from asbestosis, asbestos-related pleural disease, severe coronary artery disease, and anemia.
To combat her cancer, Ms. Fox receives chemotherapy treatments every three weeks. Apparently, she is “[r]esponding to current chemotherapy and [is] in partial remission,” but the side effects have been severe. Donadio explained: “[Ms. Fox] currently suffers from whole body aches and pain, severe abdominal and bowel complications, nausea and vomiting, dehydration, drowsiness, extreme weakness and fatigue. She also suffers from ‘chemo brain’ or a fogginess in thought process that impairs her ability to focus, concentrate and effectively [***3] communicate. [¶] … [¶] [Her] immune system is extremely weak and impaired and will only continue to become progressively weaker as she continues with chemotherapy treatment which will result in worsening impairing side effects including severe bowel and abdominal issues, severe weakness and fatigue, poor appetite and difficulty walking and talking. This will further impair [Ms. Fox's] stamina and ability to focus, concentrate, and effectively communicate, making her less able to fully participate in her trial.”
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21 Cal. App. 5th 529 *; 230 Cal. Rptr. 3d 493 **; 2018 Cal. App. LEXIS 229 ***
ARDELLA FOX et al., Petitioners, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; METALCLAD INSULATION LLC et al., Real Parties in Interest.
Prior History: [***1] Superior Court of San Francisco City & County, No. CGC-17-276565, Richard B. Ulmer, Jr., Judge.
declaration, calendar preference, suffers, trial court, severe, trial preference, chemotherapy, Italics
Civil Procedure, Trials, Governments, Courts, Appeals, Standards of Review, Abuse of Discretion, De Novo Review, Evidence, Burdens of Proof, Burdens of Proof, Clear & Convincing Proof