KATHLEEN HILAND, ET AL. VS 3M COMPANY, ET AL.

Case Number: *******8396 Hearing Date: September 26, 2023 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On April 14, 2023, Plaintiffs Kathleen Hiland and John Brockett filed this action for personal injury caused by asbestos exposure. On September 20, 2023, Plaintiffs moved for trial preference under Code of Civil Procedure sections 36, subdivision (d).

The court has discretion to grant a motion for trial preference accompanied by clear and convincing medical documentation concluding that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months and satisfying the court that the interests of justice will be served by granting the preference. (Code Civ. Proc., 36, subd. (d).)

“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., 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.” (Id.)

Plaintiffs submitted evidence that Hiland has stage IV epithelioid mesothelioma. (Niu Decl., 4, 8.) Dr. Jiaxin Niu reviewed Hiland’s medical record and personally observed and examined Hiland in conjunction with her mesothelioma and potential treatment options as her treating oncologist. (Id. at 4-5.) Hiland received chemotherapy treatment from July 2022 to September 2022 and thereafter started immunotherapy. (Id. at 9-10.) Radiology studies from January 2023 and March of 2023 show an increase in Hiland’s nodules. (Id. at 10.) A July 2023 radiology study shows that the cancer has significantly worsened and has not responded to additional treatment. (Ibid.) Hiland experiences fatigue and mild abdominal pain, which Dr. Niu declares will get worse over time. (Id. at 12.) Hiland is currently undergoing a third immunotherapy on a clinical trial, but it is not expected to cure her mesothelioma. (Id. at 13.) Dr. Niu concluded Hiland’s health will continue to decline, and there is substantial medical doubt as to Hiland's ability to survive beyond six months. (Niu Decl., 15.)

Defendants Hyster-Yale Group and Pneumo Abex argue that Plaintiffs’ moving papers do not provide any medical documentation supporting the prognosis that Hiland is unlikely to live more than six months. (Ibid.) However, Dr. Jiaxin Niu’s declaration provides sufficient details about her medical records, recent condition, and prognosis. (Niu Decl., 4-5.)

Based on the foregoing, the Court finds there is sufficient evidence to meet the clear and convincing standard for granting this motion. The Court further finds that the interests of justice will be served upon the granting of preference in this case as this would allow Hiland to pursue her case while she is still able to.

The motion is GRANTED. The trial is set for January 22, 2024 at 9 a.m. The final status conference is January 8, 2024 at 9 a.m. The parties are to meet and confer on a trial setting order. A status conference on a trial setting order is set for October 3, 2023 at 9 a.m.

The moving party is to give notice.

Case Number: *******8396 Hearing Date: September 20, 2023 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On April 14, 2023, Plaintiffs Kathleen Hiland and John Brockett filed this action for personal injury caused by asbestos exposure. On September 20, 2023, Plaintiffs moved for trial preference under Code of Civil Procedure sections 36, subdivision (d).

The court has discretion to grant a motion for trial preference accompanied by clear and convincing medical documentation concluding that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months and satisfying the court that the interests of justice will be served by granting the preference. (Code Civ. Proc., 36, subd. (d).)

“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., 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.” (Id.)

Plaintiffs submitted evidence that Hiland has stage IV epithelioid mesothelioma. (Niu Decl., 4, 8.) Dr. Jiaxin Niu reviewed Hiland’s medical record and personally observed and examined Hiland in conjunction with her mesothelioma and potential treatment options as her treating oncologist. (Id. at 4-5.) Hiland received chemotherapy treatment from July 2022 to September 2022 and thereafter started immunotherapy. (Id. at 9-10.) Radiology studies from January 2023 and March of 2023 show an increase in Hiland’s nodules. (Id. at 10.) A July 2023 radiology study shows that the cancer has significantly worsened and has not responded to additional treatment. (Ibid.) Hiland experiences fatigue and mild abdominal pain, which Dr. Niu declares will get worse over time. (Id. at 12.) Hiland is currently undergoing a third immunotherapy on a clinical trial, but it is not expected to cure her mesothelioma. (Id. at 13.) Dr. Niu concluded Hiland’s health will continue to decline, and there is substantial medical doubt as to Hiland's ability to survive beyond six months. (Niu Decl., 15.)

Defendants Hyster-Yale Group and Pneumo Abex argue that Plaintiffs’ moving papers do not provide any medical documentation supporting the prognosis that Hiland is unlikely to live more than six months. (Ibid.) However, Dr. Jiaxin Niu’s declaration provides sufficient details about her medical records, recent condition, and prognosis. (Niu Decl., 4-5.)

Based on the foregoing, the Court finds there is sufficient evidence to meet the clear and convincing standard for granting this motion. The Court further finds that the interests of justice will be served upon the granting of preference in this case as this would allow Hiland to pursue her case while she is still able to.

The motion is GRANTED. The trial is set for January 16, 2024 at 9 a.m. The final status conference is January 2, 2024 at 9 a.m. The parties are to meet and confer on a trial setting order. A status conference on a trial setting order is set for September 28, 20023 at 9 a.m.

The moving party is to give notice.

Case Number: *******8396 Hearing Date: September 14, 2023 Dept: 15

ORDER RE MOTIONS TO QUASH (VANDERBILT MINERAL)

Plaintiffs Kathleen Hiland and John Hiland allege Kathleen Hiland developed mesothelioma as a result of exposure to asbestos in talc supplied by Defendant Vanderbilt Minerals, LLC, Inc. Defendant filed a motion to quash service of summons for lack of personal jurisdiction.

A defendant may move to quash service of summons on the ground of lack of jurisdiction. (Code Civ. Proc., 418.10, subd. (a)(1).) The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10. (Code Civ. Proc., 581, subd. (h).)

“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” (Code Civ. Proc., 410.10.) “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’” (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 471-472.) A state court may not exercise personal jurisdiction over a party under circumstances that would offend “traditional notions of fair play and substantial justice.” (Asahi Metal Industry Co., Ltd., v. Superior Court of California, Solano County (1987) 480 U.S. 102, 113.)

When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. (Jayone Foods, Inc. v. Aekyung Industrial Co. Ltd. (2019) 31 Cal.App.5th 543, 553.) Once facts showing minimum contacts with the forum state are established, the defendant has the burden to demonstrate that the exercise of jurisdiction would be unreasonable. (Ibid.) “The plaintiff must provide specific evidentiary facts, through affidavits and other authenticated documents, sufficient to allow the court to independently conclude whether jurisdiction is appropriate. [Citation.] The plaintiff cannot rely on allegations in an unverified complaint or vague and conclusory assertions of ultimate facts. [Citation.]” (Strasner v. Touchstone Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 222.)

A defendant is subject to a state’s general jurisdiction if its contacts “are so continuance and systematic as to render [it] essentially at home in the forum State.” (Saimler AG v. Bauman (2014) 571 U.S. 117, 127.) A nonresident defendant may be subject to the specific jurisdiction of the forum “if the defendant has purposefully availed himself or herself of forum benefits [citation], and the ‘controversy is related to or “arises out of” a defendant’s contacts with the forum.’ [Citations.]” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446.) This test does not require a “causal relationship between the defendant’s in-state activity and the litigation.” (Ford Motor Co. v. Montana Eighth Judicial District Court (2021) 141 S.Ct. 1017, 1026.) The “arise out” of standard “asks about causation,” but “relate to” does not. (Ibid.) “[W]hen a corporation has ‘continuously and deliberately exploited [a State’s] market, it must reasonably anticipate being haled into [that State’s] court[s]’ to defend actions ‘based on’ products causing injury there.” (Id. at p. 1027.)

Vanderbilt Minerals, LLC provided evidence that it is incorporated in Delaware and has its principal place of business in Connecticut (Stewart Decl., 2), and therefore it is not a resident of California and not subject to its general jurisdiction.

Defendant argues it is not subject to California’s specific jurisdiction unless Plaintiffs can prove Kathleen Hiland was exposed in California to asbestos in a product that contained Defendant’s talc. (Motion at p. 4.) Defendant argues the complaint does not allege the specific products at issue. (Ibid.)

Defendant is correct that the complaint provides no information about the specific products at issue. Only in their opposition do Plaintiffs identify the products –DAP caulk products. (Opposition at p. 1.) Plaintiffs argue Defendant assumed the liability of R.T. Vanderbilt Company, which had a talc mine and sales office in California. (Opposition at p. 3; Eyerly Decl., Ex. 4 at pp. 39-40; Ex. 7 at p. 1430.) According to Plaintiffs, the talc contained asbestos. R.T. Vanderbilt Company supplied talc to DAP. (Eyerly Decl., Ex. 9 at pp. 162-163.)

In its reply, Defendant acknowledges it mined and sold talc in California. (Reply at p. 2.) Thus, it availed itself of the benefits of the forum. However, Defendant contends Plaintiffs have no evidence that Defendant’s talc was in the DAP caulk products to which Hiland was exposed. (Reply at pp. 2-3.)

Plaintiffs request jurisdictional discovery to obtain evidence that Defendant’s talc was in the DAP caulk products to which Hiland was exposed. The court CONTINUES this motion to December 12, 2023 at 9 a.m. for jurisdictional discovery on whether Defendant’s talc was in the DAP caulk products to which Hiland was exposed. Plaintiffs may file a supplemental opposition and Defendant may file a supplemental reply on regular notice.

The moving party is to give notice.