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People over 70 get court preference dates

Question

I believe I have an excellent case involving a substantial sum of money. My problem is that I am seventy-two years old and may be dead and gone and looking down from heaven before my case ever comes up for trial in court. What can be done about this?

Dennis D.
Almaden Valley

Dear Dennis:

You undoubtedly have heard about our problems in the legal system dealing with court congestion. Even though we have excellent judges in Santa Clara County who work very hard, often there are just too many cases and too few courtrooms available.

It is much worse in Los Angeles County where it often takes five years to get to trial. I can certainly understand that this is a very serious concern when a seventy-two year old plaintiff is involved. (Obviously, defendants love it.)

I have some good news for you, however. The State Legislature has adopted California Code of Civil Procedure Section 36. This law provides that a civil case shall be entitled to preference in setting for trial if the person has reached the age of seventy, unless the court finds that the party does not have a substantial interest in the case as a whole. In other words, assuming that you have a substantial interest in your case, the court must grant your motion for a preference in setting the case for trial.

This means that your case will be set for trial ahead of other cases and you won't have to wait so long. In fact, CCP§36 also provides that the court shall set the case for trial not more than 120 days from the date of the request for the preference in setting. This is very soon and almost an absolute minimum, since it may take your attorney that long to properly prepare the case for trial.

You should also be aware that you are excused from the arbitration procedure. In many cases, mandatory arbitration is first ordered by the court, also in an effort to reduce court congestion. This procedure has been extremely effective in settling marginal cases. The presiding judge in Superior Court has authority to order any given case to a nonbinding arbitration; informal proceedings are held before an experienced arbitrator who then makes a ruling. If either side is unhappy with the decision, the plaintiff or defendant can proceed to court with a trial. Arbitration may work; however, it may take up a lot of extra valuable time for you.

A 1988 case decided in the Court of Appeals held that older litigants are entitled to their day in court promptly and are not required to go through the arbitration procedure. Vinokur vs. Superior Court, 243 Cal. Rptr. 683 (Cal. App. 2 Dist. 1988).

You may have also heard about many delays in court once the case is set for trial. Once again, the legislature in Sacramento has provided a break for plaintiffs over seventy years of age. The law provides that there shall be no continuance except for physical disability of a party or a party's attorney, or upon a showing of good cause stated in the record. Even then, the maximum delay is valid only on one occasion, and cannot exceed 15 days.

I hope this is good news for you, Dennis. And I certainly hope that you aren't looking down from heaven by the time your case is set for trial.