Trial Preference for Those Over 70

The California Code of Civil Procedure (CCP) provides for expedited trial setting for those over 70 if the court finds that 1) the party has a substantial interest in the action as a whole, and 2) the health of the party is such that preference is necessary to prevent prejudicing the party’s interest in the litigation (CCP Section 36 (a)).  This issue most often arises for elderly plaintiffs, whose age and ill health raise questions about their longevity and their ability to participate meaningfully in their own case.  The CCP also provides for expedited trial setting where there is medical documentation that a party’s illness raises substantial doubt of survival past six months (CCP Section 36 (d)).  There is a catch-all provision in the CCP as well giving the court discretion to grant a motion for trial preference upon a showing that the interests of justice will be served by granting the preference (CCP Section 36 (e)).   The court granting preference means that a trial must be set not more than 120 days from the court ordering the expedited setting.  Four months might sound like a long time to the average person, but in the civil justice system, such a setting is quite prompt.

 
The purpose of filing such a request to the court is plain: to obtain a trial date and verdict within the lifetime of the moving party (normally the plaintiff).  If there is clear and convincing documentation of the party’s terminal diagnosis within six months (under Section 36 (d)), there is probably not going to be much in the way of opposition.  If the basis of the request is that the person is over 70 and has significant health concerns, one should expect opposition to the expedited trial request.  Often, the defense will oppose a request under section 36(a) by arguing that there is no proof the plaintiff will die within six months, when such a showing is not required.  The trial judge has discretion to grant the expedited request under sections (a), (d) or (e), and the attorneys at Janssen Malloy LLP have had courts grant such request under all three provisions.
 
The practical importance of obtaining an expedited trial preference cannot be overstated.  It puts the case on a fast track, often to settlement, given the extremely short time span from court order to trial date.  In the context of an elder with real health concerns, this can mean the difference between justice obtained and justice denied through delay.  The attorneys at Janssen Malloy LLP are familiar with the landscape of litigating cases involving seniors, and stand ready to assist if needed.

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