How to File a Motion for Trial Preference in California

A motion for trial preference in California asks the court to jump your civil case to the front of its calendar and set trial within 120 days. It is filed under Code of Civil Procedure section 36, which lays out both mandatory grounds (age-based, and for minors in injury cases) and discretionary grounds (terminal illness, or a general interests-of-justice showing). Most California civil cases take a year or more to reach trial, so a granted motion changes the shape of the case entirely. Getting there means fitting one of the qualifying grounds, backing it with the right declarations, and serving the motion on the correct schedule.

Do You Qualify Under Section 36

Before drafting anything, identify which subdivision of section 36 you are invoking. The evidentiary standard and the court’s discretion depend on it.

Parties Over 70 (Mandatory)

If you are over 70 and a party to a civil case, the court must grant preference when two conditions are met: you have a substantial interest in the case as a whole, and your health is such that an expedited trial is necessary to prevent prejudice to your interests in the litigation.¹ Substantial interest means you are not a peripheral party; your claims or defenses are central to the outcome. The health condition does not have to be terminal. It has to be serious enough that delay could meaningfully compromise your ability to participate in trial or benefit from the result.

You do not have to have been over 70 when the case was filed. A party who turns 70 during the litigation can move for preference at that point.¹

Minors Under 14 in Injury or Wrongful Death Cases (Mandatory)

In personal injury or wrongful death actions, a party under 14 is entitled to preference unless the court finds the minor lacks a substantial interest in the case as a whole. No medical showing is required, which makes this the easiest of the mandatory grounds to satisfy.¹

Terminal Condition (Discretionary)

Any party of any age can seek preference under subdivision (d) with clear and convincing medical documentation that they suffer from an illness or condition raising substantial medical doubt of survival beyond six months. The court retains discretion and must also find that the interests of justice support the motion.¹ The clear and convincing standard is a higher evidentiary bar than the age-based ground, and it is where many of these motions fail.

Interests of Justice (Discretionary)

Section 36(e) lets the court grant preference whenever the interests of justice would be served, without any specific age or medical requirement.¹ Courts use it sparingly. Without a concrete reason tied to a party’s health, age, or similarly urgent circumstance, this is an uphill motion.

Other California statutes grant preference in specific case types, including certain damages actions tied to a felony conviction, unlawful detainer cases, and eminent domain proceedings. Those preferences are automatic to the case type and are not what a section 36 motion addresses.

What Goes Into the Motion

The package has several parts, and a thin declaration or missing element will sink an otherwise strong case.

The Motion and Memorandum

Draft a Notice of Motion and Motion for Trial Preference, and identify the subdivision you are relying on. The statute does not require you to name the subdivision, but doing so is standard and lets the court apply the right legal standard from the start. A memorandum of points and authorities should lay out the legal basis and walk through how your evidence meets each element.

Declarations

Every preference motion must include a declaration stating that all essential parties have been served with process or have appeared.¹ What else you need depends on the ground:

Over 70: a declaration establishing age, plus a declaration addressing health. The health declaration can come from the party, the party’s attorney, or a physician. California courts have allowed attorneys to declare on information and belief about diagnosis and prognosis, but defendants routinely attack those declarations for lack of foundation. A recent, detailed declaration from the treating physician in the relevant specialty is the strongest option.
Under 14: a declaration establishing age and confirming the case involves personal injury or wrongful death. No health showing is required.
Terminal condition: the heaviest evidentiary lift. A physician’s declaration should state the diagnosis, the prognosis, and the specific basis for substantial medical doubt of survival beyond six months, tracking the statutory language rather than hedging with phrases like “may not survive.”¹
Interests of justice: whatever declarations and exhibits demonstrate that ordinary scheduling would be unjust. There is no template; the showing is case-specific.

Expect the other side to push on the medical evidence. Common attacks include the wrong specialty, a stale evaluation, or a lawyer opining on a medical prognosis. Head those off up front with a recent declaration from the right physician.

Filing Fee

As of 2026, the fee for a noticed motion in California superior court is $60 under Government Code section 70617(a).² If the preference motion is part of your first appearance in the case, the first-appearance fee covers it.

Serving the Motion and Counting the Days

File with the clerk of the court where the case is pending and serve every other party. Timing is where these motions most often get tripped up.

Under Code of Civil Procedure section 1005, moving papers must be served and filed at least 16 court days before the hearing.3 The method of service extends that baseline:

Mail within California: add 5 calendar days.
Mail to an address outside California but within the U.S.: add 10 calendar days.
Fax, express mail, or overnight delivery: add 2 calendar days.
Electronic service: add 2 court days under Code of Civil Procedure section 1010.6.⁴

Count carefully. Court days exclude weekends and court holidays; calendar days include them. The motion itself can be brought at any point during the case, and discovery does not need to be complete.

The Hearing

At the hearing, the standard depends on the subdivision. For mandatory preference under subdivisions (a) and (b), the analysis is narrow: if the statutory findings are supported, the court must grant the motion. It does not weigh defendant hardship or case complexity against the moving party. That is what mandatory means in practice.

For discretionary preference under subdivisions (d) and (e), the court can weigh the broader picture, including the state of discovery, the impact on other parties, and whether justice genuinely requires acceleration. A concrete, near-term risk of harm carries more weight than general inconvenience.

A denial does not necessarily end things. If the denial was without prejudice or circumstances have changed, a party can refile. Deteriorating health with updated medical evidence is the classic example.

The 120-Day Clock After Preference Is Granted

When the court grants the motion, it sets trial no more than 120 days out. That window is firm. Continuances beyond it require either physical disability of a party or attorney, or good cause stated on the record. Any continuance is limited to 15 days, and a party can receive only one continuance for physical disability.¹

Discovery and Experts

Discovery that might normally stretch six to twelve months has to fit into roughly four. Depositions, written discovery, and document production all move in parallel. Judges in preference cases generally expect cooperation on scheduling and tend to intervene quickly on disputes.

Expert exchanges compress hardest. Under Code of Civil Procedure section 2034.230, the standard deadline for exchanging expert witness information is 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date.⁵ In a preference case, that 50-day mark arrives fast. Identify and retain experts immediately after the motion is granted. A court can order an earlier or later exchange on good cause, but planning around that is risky.

Be Ready Before You File

The compressed timeline cuts both ways. Filing before your own case is substantially prepared invites problems, because a request for your own continuance after obtaining preference undermines the urgency that justified the motion. If the case involves complex expert testimony, multiple defendants, or extensive document review, build those realities into your timeline before bringing the motion.

1
California Legislative Information. California Code of Civil Procedure Section 36
2
Judicial Branch of California. Superior Court of California Statewide Civil Fee Schedulea>
3
California Legislative Information. California Code of Civil Procedure Section 1005
4
California Legislative Information. California Code of Civil Procedure CCP 1010.6
5
California Legislative Information. California Code of Civil Procedure Section 2034.230