In medical malpractice litigation, delay is a defense strategy. These cases often involve complex medicine, multiple defendants, and expert-intensive discovery. Left unchecked, the defense excuses of expert unavailability and need for more discovery can cause even straightforward cases to take many years before reaching trial. But California Code of Civil Procedure section 36 gives certain plaintiffs—specifically, those over 70 or under 14—a way to jump the line and demand an early trial date.
The statute provides two separate timelines, depending on the age of the plaintiff. For plaintiffs over 70 who qualify under section 36(a), the court must set trial within 120 days. But for minor plaintiffs under 14 years old, medical malpractice cases are subject to a different and special rule from general personal injury case. Instead of setting trial within 120 days, CCP § 36(g) mandates trial be set no sooner than six months and no later than nine months from the date of the hearing for medical malpractice cases.
The Statute: CCP § 36(b) and (g) for Minor Plaintiffs in Med Mal
Section 36(b) provides that any plaintiff under the age of 14 who has a substantial interest in the case is entitled to trial preference. The court has no discretion to deny it unless the plaintiff’s interest is merely peripheral. If the plaintiff is the injured child or a wrongful death heir, this standard is easily met.
In medical malpractice cases, however, the timeline changes. Once preference is granted under 36(b), subdivision (g) requires that trial be set within a fixed window:
“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.” (CCP § 36(g))
This six-to-nine-month window was designed to protect the due process rights of defendant healthcare providers. Malpractice cases involve voluminous records, expert witness disclosures, and complicated causation theories. The Legislature recognized that while young plaintiffs need access to timely trial, defendants still need sufficient time to prepare.
But for plaintiffs’ counsel, this restriction is not a barrier. It’s a tactical advantage.
Why the Six-to-Nine-Month Rule Actually Helps Plaintiffs
Section 36(g)’s built-in delay gives defense lawyers very little ground to oppose a properly filed motion. It preemptively addresses their most common arguments—due process, lack of preparation time, discovery obligations, and expert disclosures. With the statute granting them at least six months to get ready, they have virtually no procedural basis to object.
In practice, most medical malpractice defense firms do not even oppose these motions. Instead, they typically ask the court to set trial closer to the nine-month mark. Judges, many of who hate the 120-day rule and will try to find any excuse to deny them, are far more likely to quickly grant the motion and set the case on calendar.
More importantly, preference under section 36(g) puts real and immediate pressure on the defense. Once the trial date is locked in, the clock starts ticking. Defense counsel must accelerate discovery, retain and disclose experts, and submit to earlier case deadlines than they may have planned for. The leverage this creates—especially in high-exposure cases—is significant.
Timing Is Everything: The April Filing Strategy
We often file section 36(g) motions so that they are heard in April. Strategically, this puts the defense in a difficult position. If the court grants the motion in late April or May, trial must be set between October and January.
The defense then faces a tough choice. If they push for the six-month mark, they give us a faster trial date—earlier pressure, earlier jury, earlier resolution. But if they push for trial closer to nine months out, they land in the new calendar year—when the MICRA non-economic damages cap increases again under Civil Code § 3333.2.
The Civil Code § 3333.2 cap increases every January 1 under the post-2023 MICRA reforms. This change applies to both wrongful death and personal injury claims and continues to adjust annually until it reaches its maximum limit.
Critically, the applicable cap is based on the date of resolution, not the date of injury or the date of filing.
That means if trial occurs in January, the higher cap applies—even if the injury occurred years earlier. Filing a motion in April positions trial just on the border. Defendants are forced to choose between a late-fall trial date with a lower cap or a January trial with higher exposure. Either way, your client benefits. And in many cases, this can be a decisive factor in bringing the defense to the settlement table.
No Room for Error: Be Trial-Ready Before You File
Once the court grants the motion, the statute controls the calendar. Trial cannot be set sooner than six months or later than nine months from the order. There is no discretion. Courts may not push the trial date to accommodate expert schedules, family vacations, or heavy motion calendars.
The only continuance available under the statute is for the physical disability of a party or attorney, and even then, the delay may not exceed 15 days.
This means you must have your case ready to try within nine months of the hearing date. Before filing, confirm your experts will be available. Subpoena your treating physicians early. Make sure your economist, life care planner, and other experts are prepped. Coordinate calendars and clear any vacation conflicts. Once trial is set, it cannot be moved.
Wrongful Death Cases Qualify Too
The right to preference under section 36(b) extends to wrongful death claims where a minor is one of the decedent’s statutory heirs. As long as the minor has a substantial interest in the case—which most child heirs do—the motion should be granted, and the six-to-nine-month time frame of section 36(g) will apply.
This is especially important in cases involving the death of a parent, where a surviving child may be the most sympathetic plaintiff. Don’t overlook this opportunity in death cases. File the motion, get the date, and hold the defense accountable.
Preference in Kaiser Arbitration: Rules 33–36
Medical malpractice cases against Kaiser are arbitrated under the Office of the Independent Administrator (OIA) rules. Fortunately, those rules also recognize the importance of preference for minor and elderly plaintiffs.
Typically, under OIA rule 24, a case must close within 18 months of the demand for arbitration. Rules 33 through 35 expedites the procedure. Unfortunately, the rule is far more strict than sections 36(a), (b), or even (d). The claimant must show “an illness or condition raising substantial medical doubt of survival” within that 18-month period. Moreover, there is no provision for a child under the age of 14 or an elder over the age of 70.
That being said, in practice, the rules are very Claimant friendly. Unlike courts, who often loathe preference motions as they clog calendars and provide little room for continuances, arbitrators often welcome preference motions. Most arbitrators get paid an extra handsome amount in a predetermined time before the arbitration (often 30 to 60 days before the arbitration), making an earlier arbitration date more beneficial. Moreover, given the relaxed nature of arbitration, there are far less motion or discovery issues in arbitration than in trial.
In addition, scheduling a hearing date for such a motion is often far easier in arbitration than in civil court. These motions can be heard very quickly without having to file and wait months before they are heard. This means that in Kaiser cases, you may actually get to “trial” faster than in civil court—and with fewer delays. For medically fragile plaintiffs, Kaiser preference may offer a cleaner and more predictable path to justice.
One piece of advice: always offer to shorten any notice time for a motion or summary judgment/adjudication under Code of Civil Procedure section 437c. This is an argument used early and often against claimants seeking preference in Kaiser cases. Rule 35 explicitly allows the arbitrator to shorten the length of time for discovery motions and hearings.
If there are any delays in selecting an arbitrator, the claimant can go straight to the Office of Independent Administrator under Rule 34 and seek preference.
Final Thoughts: Use the Statute, and Be Strategic
Section 36 is one of the most powerful tools in California medical malpractice litigation. For plaintiffs over 70, it provides a 120-day path to trial. For minors under 14, it locks in a six-to-nine-month trial setting. In either case, the law is mandatory, the procedures are clear, and the strategic benefits are significant.
Don’t wait for trial delays to erode your case. Don’t let time weaken sympathy, raise comparative fault questions, or reduce jury impact.
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