The Courts are overwhelmed. In Los Angeles County, the day you file your lawsuit you get a trial date stamped on your paperwork - often years down the road. In San Diego County, it can also take years to get to trial.

 

Many folks (yes, even lawyers!) forget about the California Code of Civil Procedure (CCP) Sec. 36.

 

The California legislature has decided that, as a State, we want to protect the elderly, our children, and the terminally ill from the long-drawn-out delays of civil litigation.

 

CCP 36 provides "for an early trial date for persons who because of their advanced age or serious medical problems might die or become incapacitated before their cases come to trial." (see also Rice v. Superior Court (1982) 136 Cal.App.3d 81, 88.)

 

The purpose of CCP Sec.36 subdivision (a) is "to safeguard to litigants beyond a specified age against the legislatively acknowledged risk that death or incapacity might deprive them of the opportunity to have their case effectively tried and the opportunity to recover their just measure of damages or appropriate redress." (Id. at 89.) California Rules of Court, Rule 3.1335(b) provides "[t]he request may be granted only upon an affirmative showing by the moving party of good cause based on a declaration served and filed with the motion or

application." (Id.)

 

A few considerations:

 

Judges Hate Crowding Their Already Jammed Docket

 

Never forget what you are asking for. You're asking an already swamped judge to put your trial on the books ahead of hundreds of other cases. Judges are negatively inclined to grant your CCP 36 motion.

 

Get Some 411 on Your Judge

 

Call around. Most judges fall into the "grant all requests because its the fair thing to do" category or the "deny all requests unless a party proves they are on death's door" category. Figure out which one your judge is.

 

How to Show Good Cause

 

Many lawyers default to "regular" motion declarations to show good cause. They attach a few pages of medical records showing the client's age and general health... then they're shocked when a judge denies your elderly client a speedy trial.

 

Doctor Declarations & Judicial Notice

 

Always go the extra step of either 1) getting a doctor declaration or 2) judicially noticing medical research that shows your client's health condition.

 

For example, I recently won a speedy trial motion where I requested the Court take judicial notice of the fact that the 1-year mortality rate for patients over the age of 60 who suffer a hip fracture is estimated to be between 14% and 58%. (Dr. Scott Schnell, M.D., et al, The 1-Year Mortality of Patients Treated for Hip Fracture Program for Elders, Geriatric Orthopaedic Surgery Journal, 6-14 (2010).

 

Judicial notice of a medical journal is based on Evidence Code section 452(h), which provides "[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy" are judicially noticeable. (Evid. Code, § 452(h); see also Brown v. Smith (2018) 24 Cal.App.5th 1135)

 

These extra evidentiary showings will usually win the day and give a judge enough reason to grant your motion.

 

Losing Credibility

 

In your zealousness to get a speedy trial for your client - don't forget that exaggerating an elderly client's "health issues" can immediately lose you credibility with the judge if your client does not have any potentially terminal infirmities. One good rule of thumb is the "when is your next doctor appointment test"? If your client's next doctor appointment is a regular primary care checkup in 8 months - you probably shouldn't tell the Court they are on death's door.

 

Accelerated Litigation

 

Congrats. The judge granted your motion. Now what? Now the judge must set trial within 120 days. CCP 36(f). Expert disclosures are going to be 60-90 days away. Are you ready? Always be cognizant of the timing of your motion - because the hearing date will be the day that the 120 timer starts from.