As California’s Courts Reopen, Is Your Case Entitled to a Trial Preference?

On June 22, 2020, the Los Angeles Superior Court began it’s “soft reopening” or “ramp up” following the closure of the courts in March 2020 due to the COVID-19 pandemic.  With a reported backlog of over 1,000 criminal trials and priority given to those cases, civil litigants can expect significant delays in having their cases tried before a judge or jury.  However, civil cases entitled to trial preference will be placed at the front of the line when civil trials resume.  Other state and federal courts throughout California are beginning the same reopening and rescheduling process.  Depending on the posture of their case, litigants may want to consider requesting trial preference to avoid significant delays in obtaining a resolution.      

Trial preference may be granted under several California statutes.  Code of Civil Procedure section 527(e) provides for trial preference where the plaintiff is seeking a preliminary injunction.  Under Code of Civil Procedure section 1062.3, an action for declaratory relief only is automatically entitled to trial preference.  However, where a plaintiff requests declaratory relief and other relief, trial preference is discretionary.  Code of Civil Procedure section 37 also provides for trial preference in civil cases where the plaintiff seeks damages alleged to have been caused by the defendant during the commission of a felony offense for which the defendant has been criminally convicted.

The balance of this article focuses on Code of Civil Procedure section 36, a misunderstood and underutilized trial preference statute that may see increased use as courts reopen.  Section 36 is commonly understood to allow courts discretion to grant trial preference when a party is at “death’s door.”  But the statute is more nuanced than is generally understood and provides several separate grounds for trial preference in civil cases. 

Subsection 36(a) requires judges to set a case for trial within 120 days where a party to an action is (1) over 70 years old, (2) has “a substantial interest in the action as a whole,” and (3) “[t]he health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” The request for trial preference may be made at the Case Management Conference (see Section 9 of the Judicial Council form Case Management Statement) or by noticed motion.  If the request is made by noticed motion, a showing of “good cause” is required.  All of the parties to the case must have been served or have appeared before trial preference may be granted.

The evidentiary requirements for Subsection 36(a) are minimal.  By statute, the requesting party’s medical diagnosis and prognosis may be sufficiently shown by a declaration from an attorney based on information and belief.  Thus, trial preference under Subsection 36(a) may be granted based upon nothing more than a declaration from an attorney consisting entirely of hearsay and conclusions.  Medical records or a declaration from a doctor are not technically required, but will likely carry greater persuasive value with the court.  Meanwhile, an opposing party must provide competent evidence in opposition.

Moreover, the trial court cannot consider the interests of opposing parties.  Delay in making the request is also not grounds for denying the request.  If the requirements are met, trial must be set within 120 days regardless of whether opposing parties have completed discovery or trial preparations.  After trial preference is granted under Subsection 36(a), the trial court has no discretion to delay trial setting.  Once trial is set, only one 15-day continuance is allowed.

Attorneys are more aware of Subsection 36(d), which allows courts in their discretion, to grant trial preference where one of the parties suffers from an illness “raising substantial medical doubt of survival of that party beyond six months” and the interests of justice are served.  Unlike a party requesting preference under Subsection 36(a), a party requesting preference under Subsection 36(d) must provide “clear and convincing medical documentation” of the terminal illness.

Finally, Subsection 36(e) allows courts, again in their discretion, to grant a motion for trial preference where the court is satisfied “that the interests of justice will be served by granting the preference.”  Courts are generally less likely to grant trial preference under Subsection 36(e).

Even if a matter qualifies for trial preference under one of the above-referenced subsections, preference may not be appropriate for strategic reasons.  However, as courts begin the reopening process with significant delays in civil trials, if a litigant is eligible, it may be worthwhile to consider requesting trial preference.   

Brian Lauter is a Shareholder at Eanet, PC. Brian’s practice focuses on business litigation, real estate litigation, and trust and estate litigation.