Issue by: Guy Stilson
(First Appellate District, Division Two)
Unpublished decision of the California Court of Appeal

The San Francisco Superior Court had denied Ellis’ motion for trial preference and Ellis petitioned for a writ. In a decision that is unpublished but will nevertheless be very influential with trial courts in California asbestos litigation, a three-justice panel of the Court of Appeal (Hon. Therese M. Stewart, Hon. J. Anthony Kline, and Hon. Marla J. Miller) unanimously issued Ellis’ requested writ.

Ellis’ preference motion had been based on CCP section 36(a), which requires a trial court to grant trial preference and set the case for trial within 120 days if the moving party is over 70 years old, has a substantial interest in the case, and his or her health is such that a preference is necessary to avoid prejudicing his or her interest in the litigation. The trial court had denied Ellis’ motion in the belief that his evidentiary showing was insufficient. Ellis has submitted a doctor’s declaration, his own declaration, and a declaration from his attorney.

Ellis’ declaration listed medications he was taking and stated that he was having cognitive and physical difficulty. The doctor declared that he had examined Ellis two years before the motion was filed and that he had more recently reviewed Ellis’ updated medical records and Ellis’ declaration. The Court of Appeal did not describe the contents of the attorney declaration, but did note that CCP section 36.5 provides that “the medical diagnosis and prognosis” of the party seeking preference under CCP section 36(a) may be established through an affidavit “signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party” – in other words, that to obtain preference under CCP section 36(a), there is no need for a medical professional’s declaration because an attorney’s declaration on information and belief could by itself meet the required evidentiary showing.

While the trial court was concerned that Ellis’ primary diagnosis was cancer and the doctor was not an oncologist but was a cardiologist who had not seen Ellis for two years, the Court of Appeal noted that the doctor also was certified in and practiced internal medicine. The Court of Appeal felt that gave the doctor the required expertise and the doctor’s prior examination of Ellis together with his review of Ellis’ declaration and more recent medical records gave him an adequate foundation to opine regarding Ellis’ ability to participate in trial. The Court of Appeal also noted that not all of Ellis’ difficulties were related to his cancer, that some of Ellis’ problems related to the medications he was taking, and that the effects of those non-cancer conditions and medications could be addressed by an internist. Finally, the Court of Appeal briefly noted the absence of an opposing medical opinion.

The Court of Appeal also commented that “Failure to complete discovery or other pretrial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of [CCP] section 36” and “The same is true regarding court congestion and limited court resources; there is grounds for denying the preference.”


Particularly since this order follows on the heels of Fox v. Superior Court (2018) 21 Cal.App.5th 529, the Court of Appeal has essentially opened the floodgates for trial preference motions by plaintiffs who are over 70 years of age. Because trial must be set within 120 days of the granting of the motion (continuances of up to 15 days are allowed only in exceptional circumstances), the time for defendants to investigate, conduct discovery, gather records, file summary judgment/adjudication motions, and otherwise prepare for trial will be extremely limited in such cases. This will be especially problematic where important witnesses or documents are located outside California.

While standard practice has been for plaintiffs to wait until their depositions have been taken before filing motions for trial preference, nothing in CCP section 36 requires a plaintiff to wait to file a preference motion beyond the time when “all essential parties have been served with process.” Given the language in the Ellis opinion, we anticipate that some plaintiffs may start filing preference motions much sooner. While defendants can oppose the motions on constitutional due process grounds it is hard to guess whether trial courts will favor that opposition. Defendants who wish to oppose preference motions would be well-served to support their oppositions with counter-declarations from their own medical experts, but it may be difficult to obtain medical records needed as a foundation for such declarations before the opposition is due. If treating doctors can be identified quickly enough it may be possible to take their depositions, but doing so would be expensive and without knowing in advance of the deposition what the treating physician will say may only serve to create more evidence supporting plaintiff’s case.

For a copy of the court’s opinion, go to David Ellis v. Superior Court

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