Woodland Hills personal injury attorney Barry P. Goldberg looks for every advantage for his clients which may result in a reasonable settlement or a final trial determination. One advantage that occurs from time to time is that a n injured client qualifies for “Trial Preference.” Trial Preference essentially is a rule which take a case awaiting trial and moves it to the front of the line for an earlier trial. When Trial Preference is granted, defendants and insurers are more inclined to fairly resolve claims rather than risk an adverse trial verdict. If a settlement is not possible, the case will be resolved, one way or the other, in short order.
Generally, we see Trial Preference motions in cases with plaintiffs over 70 years old and suffering from a medical issue that would make it unfair to wait the normal amount of time for a trial. At one time, simply being over 70 was almost cause enough to prompt a Trial Preference. However, since 70 today is not what it once was, and the population is living longer, getting a Trial Preference is not always an easy task even with some major illness. Given the back log of cases awaiting trial in the Superior Court, some judges are reluctant to grant Trial Preferences even where apparent good cause exists.
The Trial Preference Statute
The Trial Preference statute is fairly clear but leaves enough ambiguity that some Courts rarely grant Trial Preference motions. Code of Civil Procedure section 36, subdivision (a), provides that the granting of calendar preference is mandatory in some circumstances. (Rice v. Superior Court (1982) 136 Cal.App.3d 81, 89; Kline v. Superior Court (1991) 227 Cal.App.3d 512, 515.)
Subdivision (a) provides that “[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.” (Emphasis added.)
Subdivision (d), by contrast, provides that, regardless of the age of the party involved, “[i]n its discretion, the court may . . . 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.” (Emphasis added.)
Problems of Standard and Proof
The courts and counsel are often led astray by an incorrect statutory construction argument conflating subdivisions (a) and (d). Defendants and insurers opposing preference motions regularly contend that the motion should be denied because the plaintiff fails to support their claimed need for preference by clear and convincing proof. This is just plainly wrong. The heightened clear and convincing proof standard is required for motions seeking discretionary grants of preference under subdivision (d), but not for motions seeking mandatory preference under subdivision (a).
The standard under subdivision (a), unlike under subdivision (d), which is more specific and more rigorous, includes no requirement of a doctor’s declaration. To the contrary, a motion under subdivision (a) may be supported by nothing more than an attorney’s declaration “based upon information and belief as to the medical diagnosis and prognosis of any party.” (§ 36.5; accord Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 12:247.1, p. 12(I)-44 [attorney declaration under section 36.5 “can consist entirely of hearsay and conclusions”].)
Under subdivision (a), Defendants and insurers often use a fall back argument that an elder moving for preference under subdivision (a) must show that “death or incapacity might deprive [her] of the opportunity to have [her] case effectively tried.” However, Section 36 (a), says nothing about “death or incapacity.” Whether there is “substantial medical doubt of survival . . . beyond six months” is the matter of specific concern under subdivision (d), but the relevant standard under subdivision (a) is more open-ended.
The issue under subdivision (a) is not whether an elderly litigant might die before trial or become so disabled that she might as well be absent when trial is called. Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that that party’s “health . . . is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.” (Emphasis added.) A plaintiff need not establish likely unavailability for trial.
As acknowledged by the Court in the recent case of Fox v. Superior Court (March 20, 2018), suffering from cancer might be enough without a definitive statement on the plaintiff’s mortality.
“For those in Ms. Fox’s unfortunate situation, the end may come quickly with little warning; years may pass with gradual, relentless decline before the battle is lost; or, happily, there may be sustained remission after episodic periods of improvement and relapse. Anyone who has ever heard a physician say in these circumstances, “we just can’t predict with any certainty,” will appreciate that indeterminacy is not only inherent in the situation, but is part of the challenge of dealing with it. We therefore agree that, on this record, the absence of more specifics about Ms. Fox’s prognosis was insufficient reason to deny the Foxes’ request for calendar preference.”
Cover All Bases in a Trial Preference Motion
Although it is true that the standards for Trial Preference motions can be confusing, a careful and experienced trial attorney should cover all the bases, if possible. Trial Preference motions should be made on BOTH grounds (a) and (d) if sufficient facts are present and arguable. It is important to obtain a doctor’s opinion. It does not have to be a “death sentence.” Rather, a doctor could parrot the Court’s language in Fox v. Superior Court, supra. A doctor may feel perfectly comfortable stating that the ravages of cancer are difficult to predict with certainty. Therefore, the granting of a trial preference is necessary to prevent prejudicing the party’s interest in the litigation.
In the alternative, additional statements may satisfy subdivision (d) regarding the nature of the illness raises substantial medical doubt of survival of that party beyond six months.