Imagine standing in the line for Disney’s new Star Wars ride after everyone receives the Coronavirus vaccine. At first, you may breathe sigh of relief – but then you realize that it might take the entire day to get on the ride. When, all of a sudden, a family strolls past everyone in another line—the “Fastpass” line.  Once jury trials finally resume in California, there will be an even longer line to get justice.  However, California has a “Fastpass” line to allow certain plaintiffs to stroll past the masses and force the courts to move them to the front of the line. Code of Civil Procedure section 36 governs the California Court’s “Fastpass.” Such cases are commonly known as Preference matters. Once a court designates a case as a Preference matter, the judge must set trial no later than 120 days from the date of the motion.

Nevertheless, not everyone can get in this “Fastpass” line. Only if a plaintiff is over 70, under 14, or has six months to live can they even request this shortened time frame. However, should a plaintiff file a preference motion, discovery will move faster than a ride on Space Mountain, so all parties must get ready for trial.

Getting a “Fastpass” ticket – what qualifies for a preference motion

Code of Civil Procedure section 36 authorizes three general categories to force a court to set a matter on a preferential trial track. All three require the plaintiff to meet some calendar requirement: (1) plaintiff is over 70 years old with a health condition that necessitates the expedited trial; (2) a plaintiff is under 14 years old; or (3) there is substantial medical doubt that a plaintiff will survive beyond six months. Underlying all three categories is the plaintiffs “substantial interest” in the action as a whole.

What does it mean to have a “substantial interest” in the action as a whole?

There is little case law which helps to define “substantial interest.” The Rutter Guide comments that this prong “could refer to cases with many claims and parties where the party claiming preference does not have a significant interest in the context of the entire litigation.” (Cal. Prac. Guide Civ. Pro. Before Trial Ch. 12(I)-C.)

The preponderance of reported preference cases involves those Plaintiffs over 70 and their “substantial interest” in the litigation is generally not in dispute (asbestos, slip and fall, wrongful death) because (a) they want to testify in their case, (b) they wish to be actively involved in managing the case, and (c) the elder plaintiff wishes to spend and enjoy their money (provided they succeed in the claim). Preference has been granted for minors when the matter includes birth defects and significant automobile accidents. (In re Toyota Motor Cases, 2012 WL 965830 (Cal. Super) [granting preference based on a minor’s special damages exceeding $18,000, and the minor witnessing the death of a sibling].) Loss of consortium and wrongful death claims also meet the “substantial interest” prong.

We foresee that plaintiffs will test the nuances of Code of Civil Procedure section 36 in the years after the pandemic in order to get their claims to trial sooner.  Thus, the courts will have to decide the limits of the plaintiffs “substantial interest” in the litigation. For example, does a child, or elder, who was involved in a minor car accident with insignificant special damage and no claims for future injuries qualify for a preference trial? What if the same accident involves other plaintiffs who have more sizable claims, will the courts weigh the “substantial interests” of the other plaintiffs?

Section 36(a) – A plaintiff over 70 years old and their health is such that it is necessary to prevent producing the parties interest of litigation

Because COVID-19 affects a disproportionate number of elders, California’s superior courts may see an increase in 36(a) motions. Two prongs must be met to substantiate a preference case under 36(a): (1) the plaintiff with a substantial interest in the litigation is over 70 years old, and (2) the 70-year-old plaintiff is sick “based upon information and belief as to the medical diagnosis and prognosis of any party.” (Fox v. Superior Court (2018) 21 Cal.App.5th 529.) Indeed, the plaintiff’s health does not need to corollate to the reason for the litigation; they could be “sick” for something completely unrelated to the lawsuit. Importantly, the plaintiff seeking preference under 36(a) does not need to show a shortened life expectancy, just that they are “very sick.” (Id. at 497.)

For a defendant to challenge a Section 36(a) motion, it must obtain medical records, social media, or other proof that shows the plaintiff was “scuba-diving in the Galapagos.” Furthermore, attaching a physician’s declaration to the opposition will give the judge a medical basis to support denying a preference designation. (See Fox v. Superior Court, supra, 21 Cal.App.5th 529 at p. 539.) The defense may also be able to challenge the plaintiff’s “substantial interest,” as discussed above.

Section 36(b) – A plaintiff is under 14 years old and has a substantial interest in the claim

Code of Civil Procedure section 36(b) allows for setting a preferential trial track for a plaintiff under 14 years old. Similar to 36(a), the plaintiff’s age makes a quick and easy check. Unlike 36(a) or 36(d), there is no health requirement for minors. Thus, perhaps the only way to oppose a 36(b) motion is to challenge the minor’s “substantial interest” in litigation.

Section 36(d) There is substantial medical doubt that a plaintiff will survive beyond six months

Code of Civil Procedure section 36(d) applies to any plaintiff regardless of age. However, 36(d) does require proof of “substantial medical doubt that a plaintiff will survive beyond six months.” Thus, a party should have an opportunity to subpoenaing and review relevant medical records. Moreover, the motion will require the medical records or a doctor’s declaration (not an attorney declaration like 36(a)) to inform the judge of this “substantial medical doubt” that the plaintiff’s life expectancy is less than six months. Once again, the plaintiff must have a “substantial interest” in the litigation.

Once in the “Fastpass” line, it is time to get ready for trial!

A preference trial case moves fast. Once a case is designated for preference, the clients, carriers, and attorneys need to establish quick lines of communication with the understanding that expenses and budgets will need quick approvals.  We also recommend that the parties ask the court to modify specific statutory deadlines.  For example, the court can shorten the time for responding to written discovery, schedule discovery and motion cutoff dates closer to the trial date, mandate electronic service as the equivalent of same-day service, and encourage plaintiffs to stipulate to shorten the time for dispositive motion deadlines. A client and attorneys should evaluate other procedural modifications unique to their case. Finally, you should strongly encourage the court to set trial at the maximum of 120 days as allowable by the court – that is barely enough time for percipient and expert discovery.

Additionally, no matter how reasonable the grounds for a trial continuance and whether all parties stipulate to the same, the maximum number of days a judge can continue trial is 15 days. So, before the preference motion hearing, check vacation calendars and adjust your family’s trip to Disneyland if necessary.

In the post-pandemic trial climate, we anticipate that plaintiffs will try to use any and every available means to get their case to trial sooner. California’s trial preference statues can do just that. However, it handcuffs everyone, including the judge, to a trial within 120 days. Thus, the defense needs to be prepared, meet and confer early with counsel for the plaintiff, and seek appropriate adjustments to deadlines. Also, remind the court this is about fairness to all the other plaintiffs waiting in line, so granting such a motion must be in the interest of justice.

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