By Eric Ganci
In the California Civil Court system, California Code of Civil Procedure section 36 allows you to accelerate your litigation by setting a trial date sooner. The law considers these “preference trials” and states per CCP 36(a) “a superior court lacks discretion and ‘shall’ grant preference to a party over 70 years of age upon making a showing, ‘(1) [t]he party has a substantial interest in the action as a whole[, and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.’” This is a direct quote coming from this recent decision Pabla v. Superior Court (Dual Arch International), cited as of 4/25/23 as 2023 WL 2926646.
In Pabla, Plaintiff “73 years old, and suffered from asthma and hypertension, had recently undergone kidney surgery and was receiving dialysis.” The Court granted preference per CCP 36 but failed to set the trial date within 120 days after granting the CCP 36 petition as required.
Defense here tries to interpret the 2022 case Isaak v. Superior Court (cited as 73 Cal.App.5th 792) and argues “the superior court had the discretion to balance interests of judicial economy with the preferential trial setting provisions of section 36.”
The Court here says nope, saying “the Isaak court differentiated coordinated proceedings from ordinary proceedings, and nothing in the opinion implies section 36 should be applied differently in other contexts. ‘[C]ourts have long recognized that the Legislature intended section 36 to be mandatory in circumstances that appear to be present here.’”
The Court is very clear about how the Court reads and understands Isaak, in saying “[a]ccordingly, we refuse to read Isaak as providing superior courts discretion to avoid strictly applying the mandatory provisions of section 36 in ordinary civil proceedings.” I added emphasis.
So here, the Court agrees with the Preference Plaintiff and orders a trial date set within 120 days of granting Plaintiff’s petition for preference.
