Making Motions of Trial-Setting Preference

Brian D. Chase (Bisnar Chase Personal Injury Attorneys) and Scott D. Raphael (Litigitechnology, Inc.)

Introduction

The adage “time is money” was never more appropriately applied than to personal injury litigation. Twenty years ago, prior to adoption of Delay Reduction Act/”Fast-Track” measures in California’s trial courts, cases frequently could not receive trial settings for years after the complaint was filed, often requiring waivers of the five-year deadline for trial in larger California counties to ensure that a courtroom could be secured for the trial. Delay Reduction measures have dramatically changed the picture, with most superior courts now setting cases for trial within 12 to 18 months of the filing of the complaint. Notwithstanding the significant reduction in trial delays, plaintiffs typically do not resolve their cases unless and until a firm trial date is set, and protracted delays mean delayed resolution and delayed funding of a settlement or judgment.

There are, however, certain statutory instances in which a trial date may be set under Code of Civil Procedure section 36 within as little as 120 days of seeking the preference. An understanding of when and how these preferences are made properly available for a plaintiff is not only strategically important to satisfactory handling of the client’s case; the attorney can be held liable for malpractice for failure to pursue an available statutory trial preference. See, e.g., Granquist v. Sandberg (1990) 219 Cal.App.3d 181.

Minors

Subsection 36(b) provides that “A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under the age of 14 years unless the court finds that the party does not have a substantial interest in the case as a whole….” Under § 36(f), “[u]pon the granting of such a motion for preference, the clerk 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. Such a continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party.” In medical malpractice cases, the moving party “shall receive a trial date not sooner than six months and not later than nine months from the date that the motion is granted.” Code of Civil Procedure §36(g).

Subject to certain limited circumstances discussed below, the granting of a motion for trial setting preference by a minor (under the age of 14) is mandatory and the court has no discretion to deny the motion. (See, Peters v. Superior Court (1989) 212 Cal.App.3d 218.) The policy reasoning behind mandatory trial-setting preference is manifest: “”[c]learly, ensuring timely access to children under 14 who have suffered personal injury or parental death is a legitimate legislative purpose.” (Id., 212 Cal.App.3d at 226.) In Peters the Second District Court of Appeal upheld § 36(b) against constitutional challenges based upon equal protection, separation of power and due process, based upon the absence of any parties’ claim of inadequate trial preparation time under the 120 to 135 day maximum trial setting window of § 36(f). The Peters Court derived its conclusion that trial setting preference was mandatory on the basic rules of statutory construction. “Applying the[] rules of [statutory] construction to section 36, subdivision (b) ‘compels the conclusion that the Legislature intended it to be mandatory.” (Id., 212 Cal.App.3d at 224, citing, Rice v. Superior Court, (1982) 136 Cal.App.3d 87, 86-87). “In contrast to the use of ‘shall’ in subdivision[]… (b) the legislature used the term ‘may’ in subdivisions (d) and (e), in each latter reference linking the word ‘may’ with the phrase ‘in its discretion’. Thus, the legislature made unmistakably clear that motions for preference under subdivisions (d) and (e) were not mandatory. Equally clear, by the omission of the phrase “in its discretion” and by the use of ‘shall’ instead of ‘may’, is that subdivisions (a) and (b) were intended to be mandatory.” (Ibid.) “[T]o construe subdivision (b) as directory or discretionary would, in light of the all encompassing discretion conferred by subdivision (e) [fn. omitted], deprive it of meaning and function.” (Ibid.). To date, Peters remains controlling and dispositive.

In addition, where trial setting preference is mandatory, as it is under §36(b), a case likewise cannot be ordered to non-binding judicial arbitration in lieu of preferentially setting a compliant trial date. (See, Vinokur v. Superior Court (1988) 198 Cal.App.3d 500.) Nor may a court decline to honor a mandatorily, preferentially-set trial date by giving priority to other civil cases which are part of a delay-reduction program. See, Miller v. Simpson, Fair & Rinaldo (1990) 221 Cal.App.3d 1200.

Despite the mandatory nature of § 36(b), Courts of Appeal have carved out limited exceptions of which practitioners should be aware.

1. Substantial Delay in Litigating Case

Where plaintiff has been dilatory in prosecuting his/her case, a motion for trial setting preference will succeed in avoiding dismissal on a motion therefor for lack of prosecution under Code of Civil Procedure §§ 583.410, 420. (See, Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691.) As the court explained:

“Section 36 should not be cast in opposition to the statutes providing for dismissal, but instead be viewed as consistent with the Legislature’s overall interest in promoting the orderly and fair administration of justice. To negate the court’s discretion to dismiss based solely on section 36, subdivision (b) would only invite abuse of trial preference status, enabling an attorney for a young plaintiff to let the plaintiff’s case languish and then demand trial priority when the five-year mandatory dismissal deadline is imminent. The Legislature could not have anticipated such an incongruous result when it determined that litigants under 14 years of age deserved to have their cases heard before other civil actions.” Id., 39 Cal.App.4th at 697.

While the plaintiff in Landry was a minor who filed his motion for trial setting preference before Defendants filed their motion to dismiss for lack of prosecution, his counsel waited almost five (5) years before filing the motion to preferentially set. Putting aside the proximity to the five year “death date”, the court was no doubt hard-pressed not to comment on the inherent hypocrisy of waiting almost five years before making a motion for trial setting preference predicated upon the exigencies of a minor’s need for prompt compensation. Accordingly, if the motion is to be made at all, it should be made in good faith and thus made as early as practicable.

2. Due Process Challenges

In Peters, supra, the Court rejected Defendants’ constitutional challenge to a mandatory trial setting under § 36(b) on due process grounds, noting in that specific case that no party raised the issue of inadequate time for trial preparation or discovery completion. The court’s ruling impliedly raises the question of whether a due process challenge could lie to § 36(b) where a defendant were genuinely able to show insufficient time for trial preparation and/or discovery completion. No case to date has addressed this issue.

However, reference to other cases challenging provisions of the Code of Civil Procedure on due process grounds would appear to render this argument a nullity in practice. For example, in Lafayette Morehouse, Inc v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, the First Appellate District upheld the constitutionality of Code of Civil Procedure §425.16, the so-called “Anti-SLAPP Suit” statute, over a due process challenge to subdivision (g) thereof, which stays all discovery pending the hearing on the special motion to strike authorized by that statute. The court acknowledged that “the discovery stay and 30-day hearing requirement of section 425.16 literally applied in all cases might well adversely implicate a plaintiff’s due process rights…” (Id., 37 Cal.App.4th at 867.) But the Court also noted that the statute also requires that the trial court “must liberally exercise its discretion by authorizing reasonable and specified discovery timely petitioned for by plaintiff….” as well as “continuing the hearing to a later date so that the discovery it authorized can be completed…” (Ibid.) The Court therefore conclude that “the statute does not violate plaintiff’s right to due process of law…” (Ibid.)

In the case of trial setting preference under Code of Civil Procedure § 36, the parties have up to 135 days under § 36(f) and between six and nine months after the hearing date (set on at least 21 days’ notice) in which to complete discovery. This is also adequate time to conduct and complete expert witness discovery under the timetable set forth under Code of Civil Procedure §2034. Thus, it is difficult to see how there could be a credible due process challenge successfully mounted against § 36, when a cut-off of discovery altogether under § 425.16(g) during a 30-day window of case survivability is still considered constitutional, subject to specific discovery being authorized on a piecemeal basis.

3. Lack of “A Substantial Interest in the Case as a Whole”

Subsection § 36(b) on its face authorizes denial of trial setting preference where “the court finds that the party does not have a substantial interest in the case as a whole…” This is the biggest area of vulnerability under § 36(b), because “the phrase will have to be defined by case law. Arguably, it might apply in wrongful death action where the minor is only one of many heirs of the decedent.” (See, Weil and Brown, Cal.Civ.Proc.Bef.Tr. (TRG 2002) ¶ 12:250.2, p. 12(I)-51.) The problem occurs in deciding where the line should drawn between a “substantial interest” and an “insubstantial interest” in the case as a whole. Arguably, if the moving minor plaintiff is but one of 15 plaintiffs, the inapplicability of § 36(b) is clear. The problem occurs when the minor is one of a few heirs. “There is no statutory provision for apportionment of the damages by the jury among the heirs in accordance with their respective rights, and accordingly, it has been held that the verdict should be a single lump sum, leaving it to the heirs to adjust their interests informally or in a separate proceeding.” (6 Witkin, Summary of California Law (9th Ed. 1988) at § 1199 [emphasis supplied].) Accordingly, one moving minor plaintiff may, in theory, ultimately receive a much larger share of the total award than any of his/her co-heirs, depending upon the apportionment decided upon by all such heirs or in a later proceeding. As such, merely using a percentage basis of the moving heir as among all hears to determination whether the interest is “substantial” is not a useful exercise.

Taken to its illogical extreme, anytime there is more than one heir entitled to share in a single wrongful death award, that heir’s interests would be no more than 50 percent of the whole, and thus not “substantial.” As such, in every case with multiple heirs no minor would be entitled to trial setting preference under § 36(b) for failure to have a substantial interest. It is unlikely that this is what the Legislature genuinely intended. Moreover, no appellate court has yet refused to follow the mandatory trial setting preference provisions of Code of Civil Procedure § 36(b) sought by a minor solely because she may be required to share a single lump-sum wrongful death award with co-heirs on the pretense that his or her interest in that total lump sum wrongful death award share was somehow “insubstantial.” Given that the Legislative purpose of mandatory trial setting preference for minors was intended to “insure timely court access to children under 14 who have suffered…parental death,” the Court should theoretically err on the side of granting preference in all but the clearest of cases of “insubstantial” interest by the minor in question.

The Elderly

Trial setting preference had once likewise been mandatory under Code of Civil Procedure §36(a) for those over the age of 70 years. (See, e.g., Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689; Rice v. Superior Court, (1982) 136 Cal.App.3d 87.) However, on January 1, 1991, “an amendment to subdivision (a) of Section 36…eliminat[ed] the automatic preference provided to litigants over the age of 70.” (See Kline v. Superior Court (1991) 227 Cal.App.3d 512, 514.) Now, “[a] party to a civil action who is over the age of 70 years may petition the court for a preference, which the court shall grant if the court makes all of the following findings:

1. The party has a substantial interest in the action as a whole [and]
2. The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.”

In essence, the moving party must make the same showing of “substantial interest in the case as a whole” as must a minor, as well as set forth grounds suggesting that the elderly moving plaintiff may not survive to attend a future trial date on an nonexpedited, ordinary setting.

Moreover, of strategic concern is the fact that a Plaintiff seeking trial-setting preference under § 36(a) based on questionable health considerations may potentially have that same evidence used to support a trial preference motion used against him/her on the question of damages (e.g., life expectancy) in the damages phase of a trial once preferentially-set.
The Statute resolves this conflict by permitting the attorney to offer a declaration which may be based upon information and belief as to the clients’ medical diagnosis and prognosis, and precludes the use of that declaration for any other purpose in the case. (See, Code of Civil Procedure §36 .5.) Thus, as noted by Weil & Brown, the attorney declaration on a § 36(a) motion “can consist entirely of hearsay and conclusions” which would never be admissible at trial. (See, Cal.Civ.Proc.Bef.Tr. ¶ 12:247.1, p. 12(I)-49.) However, competent evidence of the moving party’s age (e.g., declaration of Plaintiff, certified copy of birth certificate, etc) is still required to attest to the Plaintiff’s age over 70.

As with “substantial interest in the case as a whole,” what constitutes a sufficient health concern “such that a preference is necessary to prevent prejudicing the party’s interest in the litigation” remains “will have to be defined by case law,” as to which there has yet to be any. (Weil and Brown, Cal.Civ.Proc.Bef.Tr., supra, at ¶ 12:250.2, p. 12(I)-51.) However, it would be a safe bet that a nonconclusory recitation of diagnosis and prognosis of counsel attesting to the likelihood of death of the witness prior to an ordinary trial setting would be sufficient to warrant trial setting preference under 36(a), subject to defendants’ production of competent opposing medical evidence to the contrary. (Cf. Code of Civil Procedure § 36(d) [authorizing trial setting preference based on terminal illness].

Care should be taken in drafting such declarations, as plaintiff’s counsel’s integrity and credibility are on the line. Counsel should keep in mind that extensive, medically-unsupported exaggeration in counsel’s declaration offered on a trial setting preference motion, particularly if later impeached by Plaintiff’s own expert medical deposition discovery, will be poorly-received by the court and could potentially compromise counsel’s standing, reputation and credibility with the judge during future law and motion proceedings and trial.

Where a party turns 70 while the lawsuit is in progress, the party may make the trial-setting preference motion, if appropriate, during the case’s pendency after his or her 70th birthday. (See, Code of Civil Procedure § 36(c).)

Plaintiffs are not the only parties who may seek trial setting preference based on age: the motion may also be made, where appropriate, on the grounds that an essential party other than a plaintiff suffers from precarious health. (See, e.g., Heda v. Superior Court (1990) 225 Cal.App.3d 525, 527-528 [defendant’s poor health supported making of trial-setting preference by Plaintiff, on the basis that Defendant’s presence at trial was imperative].)

The Terminally Ill

Trial setting preference is discretionary, but nonetheless available to anyone, regardless of age, as to whom clear and convincing evidence of terminal illness is presented to the Court “raising substantial medical doubt of survival beyond six months.” C.C.P. § 36(d). This motion cannot be based on an attorney’s “information and belief” declaration, but rather must be supported by competent medical testimony in the form of a declaration by a treating physician.

Generic “Good Cause”

The Court may also in its discretion preferentially set trial where the motion is “served with the memorandum to set or the at-issue memorandum and [is] accompanied by a showing of cause which satisfies the court that the interests of justice will be served by granting this preference.” (See, Code of Civil Procedure §36(e).) There is no statutory or common law guidance offered as to what circumstances would constitute “good cause” for discretionary preferential trial setting under this subdivision. In light of all of the other statutory grounds for trials setting preference offered in cases not falling under § 36(a), (b), or (d) (e.g., declaratory relief actions entitled to preference under C.C.P. § 1062.3(a), unlawful detainers entitled to preference under C.C.P. § 1179a, eminent domain actions entitled to preference under C.C.P. § 1260.010, etc.) It is likely this “catch-all” subdivision was provided by the Legislature in the event of scenarios warranting trial preference which it could not specifically conceive of at the time.

Continuances Once Case is Set for Trial

“Upon the granting of such a motion for preference, the clerk shall set the matter for trial not more than 120 days from that date [between six and nine months in medical malpractice cases under § 36(g)] 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. Such a continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party.” (Code of Civil Procedure §36(f).) The obvious purpose is to ensure that parties moving for trial setting preference act diligently to prepare their cases for trial once the court agrees to an expedited trial date.

Notwithstanding this restriction on continuances, the parties may request that the case be taken off the civil active list, for good cause. (See, e.g., Greenblatt v. Kaplan’s Restaurant (1985) 171 Cal.App.3d 991, 995-996.) However, in the world of Delay Reduction Act policies among Independent Calendaring departments within most trial courts, it is unclear such a court would agree to vacate a trial date once it has been preferentially set.

In addition, although not apparently permitted by the statute, this author has also encountered little judicial resistance to stipulated continuances in practice, where supported by an adequate showing of good cause and consented to by all parties.

Concluding Thoughts

Special care should be taken in seeking trial setting preference. While a grant of trial-setting preference strategically places that defendant at a disadvantage which may inure to plaintiff’s benefit in resolving the case expeditiously, careful planning and thought must still be given to whether the case can be adequately prepared for trial in the limited time afforded on such an expedited trial date. At the same time, the attorney has a duty to pursue a preferential trial date if it is in his client’s best interests to do so, and (s)he may be liable for professional negligence if failure to do so later visits harm on the client’s case. (See, Granquist, supra.)

The best approach involves deferring a decision on an expedited trial until a early, thorough evaluation of the discovery needs of the action and development of a reasonable, realistic timetable for completion of pretrial preparation is completed. If a case requires significant discovery, there is no reason the motion cannot be delayed for a reasonable period of time to facilitate completion of that discovery, as long as the delay is does not rise to the level of dilatoriness supporting a motion for dismissal for lack of prosecution. Consideration must be given to anticipated discovery delays by the adversary, as well as building in reasonable time to handle foreseeable law and motion proceedings to ensure timely completion of percipient and expert discovery.

When the time is right to make the motion, care should be taken to move for trial setting based upon a good faith rendition of facts genuinely supporting the need for an expedited trial date. Counsel’s carelessness or disingenuousness in this process may return to haunt him or her during trial, particularly on motions in limine and during rulings on objections and admissibility of evidence. Finally, the motion should not be made unless the moving party is committed to the end. Once the trial setting is preferentially set by the court, under the Draconian continuance restrictions, there is no turning back.