Can the defendant in a matter (who is not a minor) file for trial setting preference in a case in which the plaintiff is a minor?
The short answer is Yes, based on the limited information you have provided in your post. It shouds like you may have counsel in this matter so I urge you to contact your attorney, or hire one to help you. A link to the pertinent statute, California Code of Civil Procedure, Section 36 is provided for your reference.
Preference motions are governed by statute, California Code of Civil Procedure Section 36. Below is the Code which gives you the criteria for making a preference motion to the Court. My suggestion is the you retain counsel to assist you in the litigation of your case.
36. (a) A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings:
(1) The party has a substantial interest in the action as a whole.
(2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.
(b) 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.
(c) Unless the court otherwise orders:
(1) A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared.
(2) At any time during the pendency of the action, a party who reaches 70 years of age may file and serve a motion for preference.
(d) In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes 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.
(e) Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.
(f) Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party's attorney, or upon a showing of good cause stated in the record. Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted
to any party.
(g) Upon the granting of a motion for preference pursuant to subdivision (b), a party in an action based upon a health provider's alleged professional negligence, as defined in Section 364, shall receive a trial date not sooner than six months and not later than nine months from the date that the motion is granted.
Any party to a lawsuit has a right to file a motion for preference if they have proper grounds to do so. The grounds for such a motion are found in C.C.P. Section 36.
However, the way I understand your statement/question is that the Plaintiff is the minor and the Defendant is not. And the Defendant is the party that brought the motion for trial preference on the grounds that the Plaintiff is a minor.
I also have assumed that the statute relied upon by the Defendants is C.C.P. 36.
If my understanding of your statement/question is correct and if my assumption of authority relied on by the Defense is also correct, then my answer would be: No, the Defense cannot properly bring that motion on those grounds.
The pertinent statute is C.C.P. 36(b), which states: "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."
Upon my reading and understanding of the section, the party entitled to bring this motion is the party who is under 14 years of age. If the Defendant is not under 14 years of age then the motion is improperly brought under this section.
However, even with that in mind, often times Plaintiffs are the parties bringing motions for preference. Defendants usually drag their feet and try to draw out the lawsuit as long as possible. They have many reasons for doing so. It might be to your advantage, or the advantage of the minor Plaintiff, to have trial preference date granted and provided in this case. You should retain the services of a qualified personal injury attorney immediately and you should discuss this issue with them.
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