A motion for trial preference is designed to ensure “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. Such a preference is not only necessary to assure a party's peace of mind that he or she will live to see a particular dispute brought to resolution but it can also have substantive consequences. The party's presence and ability to testify in person and/or assist counsel may be critical to success. In addition, the nature of the ultimate recovery can be adversely affected by a plaintiff's death prior to judgment.” (Looney v. Super. Ct. (1993) 16 Cal.App.4th 521, 532.)

Legal Standard

“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.”

(Code of Civ. Proc., § 36(a).)

“[W]here a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted.” (Fox v. Super. Ct. (2018) 21 Cal.App.5th 529, 535.) If the statutory requirements are met, the Court must grant the preference and set the trial within 120 days of the ruling. (Id.) “No weighing of interests is involved.” (Id.; Koch-Ash v. Super. Ct. (1986) 180 Cal.App.3d 689, 692.) Any inconvenience to the court or to other litigants is irrelevant and “[f]ailure to complete discovery or other pretrial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference.” (Swaithes v. Super. Ct. (1989) 212 Cal.App.3d 1082, 1085.) “However, at least one court has acknowledged that its application of the preference may in some circumstances violate due process. (Roe v. Super. Ct. (1990) 224 Cal.App.3d 642, 643 fn. 2.)

“The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations.” (Miller v. Super. Ct. (1990) 221 Cal.App.3d 1200, 1205.) The purpose of section 36, subdivision (a), is “to safeguard litigants beyond a specified age against the legislatively acknowledged risk that death or incapacity might deprive them of the opportunity to have their case effectively tried and the opportunity to recover their just measure of damages or appropriate redress.” (Kline v. Superior Court (1991) 227 Cal.App.3d 512, 515.)

A motion for trial preference may also be granted where there are minor plaintiffs under age 14 years old, unless the minor does not have a substantial interest in the case as a whole. (Code of Civ. Proc., § 36(b); Peters v. Super. Ct. (1989) 212 Cal.App.3d 218, 223–224.)

“In its discretion, the court may also grant a motion for preference that is accompanied by 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.” (Code of Civ. Proc., § 36(d).) Under Section 36, subdivision (d), a heightened clear and convincing proof standard is required for discretionary grants of preference. (Fox v. Super. Ct. (2018) 21 Cal.App.5th 529, 533-534.)

“Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.” (Code of Civ. Proc., § 36(e).)

“[W]hen ruling on a motion for preference in trial setting, the trial court must consider the total picture, including the court's calendar, dilatory conduct by the plaintiff, prejudice to the defendant in the event of an accelerated trial date, and the likelihood of eventual mandatory dismissal if the request for a preferential trial date is denied.” (Mitchell v. Frank R. Howard Memorial Hospital (1992) 6 Cal.App.4th 1396, 1404.)

Procedure

“A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared.” (Code of Civ. Proc., § 36(c).) A party may also file and serve a motion for preference at any time during the pendency of the action when the party reaches 70 years of age. (Id.)

“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.” (Code of Civ. Proc., § 36(f); Sprowl v. Super. Ct. (1990) 219 Cal.App.3d 777, 780.)