Judge: Martha K. Gooding, Case: 2022-01256585, Date: 2022-10-10 Tentative Ruling

Motion for Preference

Plaintiffs Camden and Adler Olinger, through their guardian ad litem, Brett Olinger, move for trial preference and an order setting trial within 120 days pursuant to section 36(b) of the Code of Civil Procedure (“CCP”).  The Motion is GRANTED. 

CCP section 36 provides, in pertinent part: 

(b) 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 14 years of age unless the court finds that the party does not have a substantial interest in the case as a whole.  [¶] … [¶]

(f) Upon the granting of such a motion for preference, the court 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. Any 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 Civ. Proc., § 36(b), (f).)  

Once a plaintiff establishes she meets the criteria of section 36(b), trial preference is mandatory. Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224.

Under the similar provision for elderly adults, CCP section 36(a), courts have stated that the trial court cannot balance conflicting interests of opposing litigants.  Swaithes v. Superior Court (1989) 212 Cal. App. 3d 1082, 1085 (finding trial preference under Section 36 can operate to truncate the discovery rights of other parties).  But some courts have recognized that “the due process implications of this approach have not yet been decided.”  Roe v. Superior Court (1990) 224 Cal. App. 3d 642, 643 n. 2 (recognizing that “the due process implications of this approach have not yet been decided.”); see also Peters v. Superior Court (1989) 212 Cal. App. 3d 218, 227 (noting by not deciding due process issue potentially raised by mandatory trial preference, finding defendants did not have standing because they did not claim they would have inadequate time to prepare for trial).

Here, Defendant asserts that granting Plaintiffs’ motion will violate his due process rights because he will be forced to go to trial with inadequate time for investigation and discovery.  [Opp. MPA at 1-2.]  

But Defendant does not provide any facts to support that bare assertion. This action was filed on April 26, 2022; Defendant does not explain why a trial in another 120 days will not allow adequate time for investigation and discovery.  Defendant does not, for example, identify what discovery has already been initiated and conducted in the more than five months the case has been pending; what further discovery and investigation is needed; how long the additional discovery/investigation it is expected to take; and why it cannot be done in the next four months.

In short, Defendant has not provided facts to support his assertion that a trial in 120 days will prevent him from adequately preparing for trial.

Beyond that, Plaintiffs have demonstrated they are entitled to preference under section 36(b).  Each of the moving plaintiffs is currently under the age of 14 and has a substantial interest in the case as a whole. [Complaint, ¶¶ 7-10; Olinger Decl., ¶¶ 4-6 and Exs. A-B.]

Therefore, the Court intends to grant the motion and enter a case management order. To that end, the Court also intends to order the parties to meet and confer within two days of the hearing to create a schedule for discovery, which shall include, e.g., identifying the specific additional discovery needed; deadlines for initiating such additional discovery; shortened time frames for discovery responses; dates for depositions; deadlines for designating experts; and deadlines for expert depositions.  The parties’ proposed case management schedule shall be filed (and a courtesy copy provided to Department C31) no later than 4 p.m. on October 13, 2022. 

The Court sets a status conference for October 14, 2022, at 11:00 a.m., to consider the parties’ proposed case management schedule.