Judge: Mark H. Epstein, Case: 25SMCV00536, Date: 2025-05-28 Tentative Ruling

Case Number: 25SMCV00536    Hearing Date: May 28, 2025    Dept: I

This is a motion for trial preference.  Plaintiff has demonstrated that she is 89 years old (which meets the statutory requirement), and her doctor says that her life expectancy is six months or less.  Defendant opposes.

Plainly the statutory requirements are met.  Plaintiff will not survive a regular trial setting, or even an advanced one.  Under section 36(a), she is entitled to a preferential setting. 

However, there is a wrinkle.  Defendant has filed a motion to compel arbitration.  That motion was filed on May 14, 2025—about a month after the motion for calendar preference was filed.  That motion is currently set to be heard on June 30, 2025.  Defendant states that the Arbitration Act provides that on motion of a party seeking to compel arbitration, the case will be stayed pending resolution of that motion.  And that is in fact the law.

So the court has to harmonize two competing policies.  The policy enshrined in section 36—that a case ought to get to trial quickly where there is an elderly party and delay will substantially effect the ability of that party to participate in the case or get relief—and the policy enshrined in the Arbitration Act, which is that arbitrations are favored and parties who contract to arbitrate should be sent to arbitration rather than have their case tried in court.  The court believes it can do so.

The court will GRANT the motion for calendar preference and will set the trial for a date not more than 120 days from now.  However, the court will also advance the hearing date on the motion to compel arbitration and will STAY the case pending resolution of that motion.  The court will discuss with the parties a briefing schedule for the motion to compel.  Plaintiff’s counsel might want to consider just how quickly it can get an opposition filed, which might include an argument of waiver by virtue of the delay in filing the motion to compel arbitration until May—a month after the motion for calendar preference was filed.  If it is fast, the court will demand that the defense file a speedy reply and the court will hear the motion at the soonest possible date.  If the motion to compel is denied, the trial will go forward.  If the motion is granted, the court will discuss with the parties how to ensure that the arbitration happens quickly. 

The court is aware of defendant’s due process concerns.  By the time the arbitration motion is heard and decided, and if it is denied, there won’t be a lot of time left to conduct discovery or bring a summary judgment motion.  But that is up to the defense.  The defense need not demand a stay pending resolution of the arbitration motion.  A stay is not automatic; it occurs only if requested.  The defense might want to be able to go forward with the case pending the motion to compel (which will be advanced in either case) so as to protect its procedural rights.  On the other hand, if the defense wants a stay, the court will need to grant it, but then the defense has only itself to blame for any procedural ramifications.

The court will discuss dates with the parties.  But the motion now before the court—to set a preferential trial date under section 36(a)—is GRANTED.