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California Trial Preference for Elderly Litigants with Serious Health Issues

May 5, 2017

California Code of Civil Procedure section 36(a) provides that where a person over the age of 70, has a substantial interest in the outcome of a pending lawsuit and suffers from a health condition that may prejudice his/her interest in the action, he or she may petition the court for a trial preference. The motion must be supported by an affidavit, which affidavit may be prepared and executed by the attorney for the elderly litigant and based on the attorneys' information and belief as to the medical diagnosis and prognosis of the moving party. (See C.C.P. Sec. 36.5.) If granted, the trial preference motion will require that the court set the matter for trial within 120 days from the date the motion is granted. (See C.C.P. Sec. 36(f).)

 

Note that, in vast majority of civil cases section 36(a) is not in play and those non-preferential cases are routinely set out for trial 11-14+ months from the date of the filing of the complaint, and sometimes longer. Generally speaking, notwithstanding the initial trial date set by the court, the actual trial date may not occur for as much as 24 or more months after the filing of the complaint (e.g., as a result of the court continuing the trial date and other delays along the way).

 

Having the benefit of a granted motion for preference under section 36(a) could be invaluable on several levels. First, where an elderly plaintiff is involved, he or she may not be able to withstand extended litigation and, in some instances, may become substantially infirm, incapacitated or even deceased prior to the trial date. Such an outcome could have devastating (or at least complicating) consequences for the outcome of the case.

 

 

Second, winning a motion for preference under section 36(a) often ups the ante in the litigation process vis-a-vis the defendant(s). Defendants typically prefer to drag a case out as long as possible and drive up legal expenses to delay resolution, tire out the plaintiff(s), and force a favorable settlement. Such litigation gamesmanship is often severely detrimental to the plaintiff(s). For this reason, it is wise to give serious consideration to bringing an appropriate section 36(a) motion early after filing any elder-related lawsuit on behalf of an elderly client.

 

Stated otherwise, if the motion is granted, the defendant(s) will be deprived of the "drag it out" litigation tactic they often rely upon and will be forced to take your case that much more seriously.

 

 

 

 

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