Motion for Trial Preference
(34) Tentative Ruling
Re: Burruss v. Silva, et al. Superior Court Case No. 25CECG01870
Hearing Date: May 12, 2026 (Dept. 501)
Motion: by Plaintiff for Trial Preference
Tentative Ruling:
To grant. The trial shall be set within 120 days of the hearing date for the present motion. The parties are directed to appear, prepared to discuss dates for trial.
Explanation:
Under Code of Civil Procedure section 36, subdivision (a),
A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings:
(1) The party has a substantial interest in the action as a whole.
(2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.
(Code Civ. Proc., § 36, subd. (a).)
“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, subd. (f).)
Assuming the elements of the statute are met and there has not been untoward delay by the plaintiff or other extenuating circumstance, this is a mandatory preference. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 696–697.) “Mere inconvenience to the court or to other litigants is irrelevant. Failure to complete discovery or other pretrial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36. The trial court has no power to balance the differing interests of opposing litigants in applying the provision. The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations.” (
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Moreover, “An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36.” (Code Civ. Proc., § 36.5.)
“The standard under subdivision (a), unlike under subdivision (d), which is more specific and more rigorous, includes no requirement of a doctor's declaration. To the contrary, a motion under subdivision (a) may be supported by nothing more than an attorney's declaration ‘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, 534, internal citations omitted.)
Also, a plaintiff moving for a trial preference under subdivision (a) does not have to show that he is likely to die or become incapacitated before the case goes to trial if a preference is not granted. “Section 36, subdivision (a), says nothing about ‘death or incapacity.’ Whether there is ‘substantial medical doubt of survival ... beyond six months’ is, to be sure, a matter of specific concern under subdivision (d), but the relevant standard under subdivision (a) is more open-ended. The issue under subdivision (a) is not whether an elderly litigant might die before trial or become so disabled that he might as well be absent when trial is called.
Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that that party's ‘health ... is such that a preference is necessary to prevent prejudicing [their] interest in the litigation.’ (Italics added.)” (Ibid.)
Here, plaintiff moves for a preferential trial date under Code of Civil Procedure section 36, subdivision (a), supported by the declaration of himself and his primary care physician attesting to plaintiff’s age of 75 and his diagnosis of congestive heart failure and years long history of cardiac procedures. Dr. Gonzales’ opinion is that plaintiff’s medical history and high cardiac risk create a “substantial and continuing medical risk that further delay in the resolution of this lawsuit would prejudice Mr. Burruss’s ability to participate in and prosecute his claim.” (Gonzales Decl., ¶ 8.)
The moving party has demonstrated that the elements of Code of Civil Procedure section 36, subdivision (a), are met.
Defendants oppose the motion arguing they would be prejudiced in their defense of a complex injury claim, fears of plaintiff’s health deteriorating or passing away before recovering damages are not a basis for relief, and plaintiff’s own delay in in filing his Complaint for injuries that occurred in August 2023 is to blame for his argued prejudiced ability to prosecute his claim. Defendants’ arguments fail to negate the evidence that plaintiff’s age and health qualify him for mandatory trial preference.
Defendants propose additional time to reduce the claimed prejudicial impact on their ability to defend the case. Defendants provide no authority to support the request. Moreover, the request and argument that they will be prejudiced overlooks that the court does not weigh the parties competing interests in determining whether a moving party is entitled to mandatory preference.
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