A California appellate court has ruled that California’s mandatory trial preference statute is not always mandatory, an opinion that gives courts and defendants a slight bit of breathing room in an otherwise unforgiving space. Every practitioner in the product liability space has encountered California’s trial preference statute, Civil Procedure Code Section 36. That is the law stating that a trial court “shall grant” a trial date within 120 days to a plaintiff who is over 70 years of age and in poor health. We can see the surface appeal to the statute—plaintiffs who are elderly and in poor health should be given a preference to ensure that they “get their day in court.”

Even a gentle scratch though reveals flaws beneath the surface. The purpose of our civil litigation system is to transfer wealth, and even if a sick and elderly person is given a trial date within 120 days of an order granting a preference, there is no guarantee or even a likelihood that he or she will prevail at trial, survive appeals, and collect on a judgment during his or her lifetime. Moreover, California is now one of several states that allows a decedent’s estate to recover a decedent’s pain and suffering after the decedent has passed away, which removes a major justifications that supporters of the trial preference statute often give: They have to get a trial in before the plaintiff dies so his or her claim for pain and suffering will not “die with them.” That argument has now evaporated.

The practical reality is that California’s preference statute generates substantial unfairness for both sides. As the population ages and plaintiffs’ attorneys increase their skill at building inventories, plaintiffs’ attorneys use California’s preference statute opportunistically to bludgeon defendants for the benefit of a select few. Defendants are forced to try cases without sufficient time to prepare, and other plaintiffs are pushed aside by individuals who meet the statute’s criteria and are selected by their lawyers to apply for a preference. Who is to say that a 71-year-old person in poor health deserves a trial date more than a 45 year old who has comparable claims, but is in the prime of her life? Maybe an earlier trial date is in order, but maybe one is not. Judges should have the discretion to make that call.

That mandatory nature of the rule—“the court shall grant”—can also wreak havoc on our courts, who sometimes struggle to accommodate their preference cases within the mandated 120-day timeframe, again while others who do not meet the preference criteria wait in line.

Well, maybe the mandatory preference statute is not so mandatory. In Isaak v. Superior Court, 73 Cal. App. 5th 792 (2022), the California Court of Appeal held that California’s statute allowing for MDL-style coordination trumps California’s trial preference statute, placing trial setting back within the discretion of the trial court. In Isaak, the plaintiff was 84 years old and suffered from Parkinson’s disease, clearly meeting the criteria for a mandatory trial preference. Id. at 794. His case, however, was pending within a California Judicial Council Coordination Proceeding, or “JCCP.”

A JCCP is California’s version of multidistrict litigation, i.e., cases throughout California’s 58 counties can be transferred to a single venue for coordinated proceedings, possibly including trial. Critically, the coordination statute calls for coordinated proceedings “notwithstanding any other provision of law”:

Notwithstanding any other provision of law, the Judicial Council shall provide by rule the practice and procedure for coordination of civil actions in convenient courts, including provision for giving notice and presenting evidence.

Cal. Civ. Proc. Code § 404.7 (emphasis added). Under this authority, the Judicial Council promulgated a rule stating that JCCPs generally had to follow the rules applicable to civil actions, except that “if the prescribed manner of proceeding cannot, with reasonable diligence, be followed in a particular coordination proceeding, the assigned judge may prescribe any suitable manner of proceeding that appears most consistent with those statutes and rules. Isaak, at 797-98 (quoting Cal. Rule of Court 3.504).

You might call this the wiggle room clause, and it applies in JCCPs “notwithstanding any other provision of law.” That would include California’s trial preference statute. The practical impact is that if a judge finds that the trial preference statute cannot be followed in a JCCP, he or she can follow a more suitable course.

That is what happened in Isaak. Sure, the plaintiff met the criteria for a trial preference, but his case was in a JCCP. That freed the judge to apply discretion and set trial dates under a coordinated protocol that took into account the plaintiffs’ age and health, but not as the only determining factors. That is the way it ought to be, and it resulted in an order denying the plaintiff’s motion for mandatory trial preference and an opinion from the Court of Appeal approving that result.

California’s coordination statute (“notwithstanding any other provision of law”) trumps California’s trial preference statute. We see this as a positive development, but with some limitations. First, there is still a chance that JCCP judges will, in their discretion, jam defendants with early trial dates. It’s not mandatory, but the potential for unfairness is still there. Second, the ruling is, for now, limited to JCCPs, where many product liability cases reside, but not all. The real winner in all this is judicial discretion.