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Getting a civil or probate case to trial in California can take a long time.  The pandemic has backed up many courts given that criminal and civil trials starting in March 2020 were postponed.  While most California trust and estate disputes do not require juries, a multi-day court trial remains a challenge in a pandemic world.  If done virtually, how will witnesses testify and how will exhibits be handled?

The impact of the pandemic on the time to resolve California appeals is harder to read, but courts may be more lenient with extensions of time to file briefs and court personnel who review cases (like the rest of us) may be distracted by Zoom schooling their children.  The time it takes a California Court of Appeal to process a civil or probate case turns on many factors including composition of the three-justice panel to which the appeal is assigned.

When can you jump the line?  Now, more than ever, California trust and estate litigants should be aware of any statutory preferences they may have to get their cases decided sooner.

Preference in Trial Setting

Most fact-intensive civil/probate cases take a year or more to go to trial.  This is due to the time it takes to obtain and exchange the necessary information to prepare for trial, evaluate settlement and perhaps attempt mediation, and get a date on a congested court calendar.

In some counties, cases immediately are assigned for all purposes to a particular judge and trial availability depends on that judge’s calendar.  In other “master calendar” counties, the probate judge will handle pre-trial case management, but when the trial date comes the parties will have to hope that a judge is available and it’s common in some counties for civil/probate trials to be bumped due to insufficient courtrooms.

The Code of Civil Procedure allows parties to seek preference in trial setting in a few contexts, two of which come up with some frequency in trust and estate litigation.  Under Code of Civil Procedure Section 36(a), a party older than 70 may petition the court for preference.  The court “shall grant” the petition if it finds that (1) the petitioning party “has a substantial interest in the action as a whole,” and (2) the “health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.”

Section 36(d) permits the court to grant a motion for trial setting preference if there is clear and convincing medical documentation showing that “one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.”

Section 36(e) more broadly gives a court discretion to grant a trial setting preference whenever the interests of justice will be served.

If preference is granted, Section 36(f) requires that the matter be set for trial within 120 days and continuances are sharply restricted.

Consider, for example, a 75-year-old plaintiff with a financial elder abuse claim, potentially triable to a jury, against a family member or caregiver.  If the plaintiff has mild cognitive impairment that may progress into dementia, or a serious heart condition, the plaintiff may be well positioned to request a trial setting preference under Section 36(a).

Such a plaintiff might jump the line and get out to trial ahead of much older civil and probate cases.  Instead of a trial date 12-24 months from filing, the plaintiff might get to trial within six months.

Interestingly, Code of Civil Procedure Section 36.5 allows the attorney for the petitioning party to submit a declaration upon information and belief as to the medical diagnosis and prognosis of the client in lieu of a declaration from the client’s treating physician.  This provision makes it easier for the party to get a preference motion on file, but an attorney who foregoes a doctor’s declaration may find it harder to persuade a judge that the client’s health is so precarious that a preference should be granted.

Preference on Appeal

Many rulings in probate matters are subject to an immediate and direct right of appeal, as set forth in California Probate Code Sections 1300-1304.

It seems counterintuitive that appeals in probate proceedings are entitled to preference over the panoply of civil cases that go up on appeal, but the preference is well rooted in California law.

Code of Civil Procedure Section 44 grants preference to any appeal in a probate proceeding, a high priority status also given to contested election cases and libel/slander claims brought by elective officer holders and candidates when the libel/slander is alleged to have occurred in the course of an election.

Thus, and oddly, a contestant who loses a challenge to the third amendment to a great aunt’s trust is as much entitled to a preference on appeal as a presidential candidate who disputes the outcome of a California election.

Preference on appeal means that a probate case will jump ahead of older civil cases that are waiting to be adjudicated in the appellate courts, which potentially can shorten by many months the time from the filing of a notice of appeal to the issuance of an appellate decision.  Notably, however, preference does not require the appellate court to complete its review by any particular deadline.

Lawyers who are unaware of the special preference on appeal for probate cases may miss out on accelerating the appeal by not filing a motion for preference.  Once filed, such motions readily should be granted given the mandatory nature of Section 44.