Plaintiff's Motion for Preferential Trial Date
Case No.: VCU320906 Date: July 2, 2026 Time: 8:30 A.M. Dept. 1-The Honorable David C. Mathias Motion: Plaintiff's Motion for Preferential Trial Date Tentative Ruling: To grant the motion and confirm the preference as to the currently set trial date.
Facts In this matter, Plaintiff was born October 30, 2012 and is currently 13 years old. (Declaration of Vespermann P.7.) Further that all essential parties have been served with this action and have appeared. (Declaration of Vespermann P.2.) Further, that Plaintiff is an injured party in this lawsuit, having alleged suffering of traumatic brain injuries. (Declaration of Vespermann P.8.)
Trial in this matter is set for August 17, 2026. However, Plaintiff indicates that the Court's docket does not reflect that this matter has preferential status based on Plaintiff's age pursuant to Code of Civil Procedure section 36(b). As such, Plaintiff moves to obtain an order granting this matter preference as to the currently set trial date. No opposition appears to have been filed as to this motion.
Authority and Analysis Code of Civil Procedure section 36(b) specifically provides: "A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under 14 years of age unless the court finds that the party does not have a substantial interest in the case as a whole. A civil action subject to subdivision (a) shall be given preference over a case subject to this subdivision." (Code Civ. Proc. Sec. 36(b).)
Here, Plaintiff is under 14 years old and has a substantial interest in this matter. Under Code of Civil Procedure section 36(c), a motion for trial preference by a party not older than 70 years of age must be accompanied by a declaration that all essential parties have been served with process or have appeared. (Code Civ. Proc. Sec. 36(c)(1).) Here, Plaintiff's counsel has verified that all essential parties have been served or have appeared.
Trial preference under section 36(b) is mandatory. Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224 states: "In contrast to the use of "shall" in section 36, subdivisions (a) and (b), the Legislature used the term "may" in subdivisions (d) and (e), in each latter reference linking the word "may" with the phrase "in its discretion." Thus, the Legislature made unmistakably clear that motions for preference under subdivisions (d) and (e) were not mandatory. Equally clear, by the omission of the phrase "in its discretion" and by the use of "shall" instead of "may," is that subdivisions (a) and (b) were intended to be mandatory."
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Therefore, the Court grants the motion and confirms the status of preference for the scheduled trial date. If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.
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