Are you Entitled to a Trial Preference?

Often, one of the earliest questions posed by our clients is “How long will it take to get to trial?” With the trial courts backed up, the answer I often have to give is that it could take at least a year, and often 18 months, from the date the complaint is filed to get to an initial trial date. Moreover, initial trial dates sometimes are continued to later dates.

We recently had a client who had a serious legal problem with respect to his home remodeling project, but he was 76 years old and suffering from a potentially terminal illness. He probably did not have a year or more to get to trial, and he was worried that he might have to leave the problem behind for his wife to handle. This situation created a lot of stress for him that was having a negative effect on his health.

California law takes into account that a party to a lawsuit may be elderly and suffering from a serious illness. In that situation, the party may file a motion asking the court to grant a “preference” with respect to trial-setting. A preference essentially permits the party to cut to the front of the line.

Code of Civil Procedure section 36 (“Section 36”) provides that,

(a) A party to a civil action who is over 70 years of age may petition the court for a 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.

(f) 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.  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.”

We filed a motion for a preference under this section and the court granted our motion. The trial, which previously had been set for January 2018 was advanced to October 2017, and the case was settled prior to trial – to the great joy of our client.

Section 36 provides a number of different bases for a party to file a motion for a preference. If you have a potential lawsuit, but you have a good reason why you just can’t wait more than a year to go to trial, please contact us. We can evaluate whether you might qualify for a preference and get to trial within 6 months.