California Recognizes First Exception to Mandatory Preference Statute for Coordinated Proceedings

The California Supreme Court denied review of the Court of Appeal's decision in Isaak et al. v. Superior Court of Contra Costa County, thereby authorizing the first exception to California's section 36 preference statute for coordinated proceedings and safeguarding the discretion of coordination judges over case management.

On March 23, 2022, the California Supreme Court denied review of the Court of Appeal's decision in Isaak et al. v. Superior Court of Contra Costa County. In Isaak, the Court of Appeal held that the provisions governing coordinated proceedings in California supersede California Code of Civil Procedure section 36, a statute that requires trials within 120 days in certain cases involving individuals over age 70. The opinion provides critical guidance to litigants involved in Judicial Council Coordinated Proceedings ("JCCPs"), marks the first time that an appellate court has found an exception to section 36's otherwise-mandatory requirements, and establishes a framework that the Supreme Court has now declined to revisit for potentially defining additional exceptions to section 36. Jones Day led the successful briefing and argument on the preference issue in Isaak

The Isaak appeal arises from a JCCP involving plaintiffs who claim they developed Parkinson's disease due to asserted paraquat exposure. Before discovery in the JCCP had begun in earnest, the Isaak plaintiff sought to have the coordination judge try his individual case within 120 days under section 36, citing his age and alleged declining health. The trial court denied the motion, holding that even where its conditions are satisfied, section 36 must give way to coordination rules that grant coordination judges the power to conduct JCCPs notwithstanding laws that typically govern civil proceedings.

The Court of Appeal affirmed, holding that the statutes and rules governing JCCPs provide that "[n]otwithstanding any other provision of law," coordination judges may "prescribe any suitable manner of proceeding" if generally applicable rules cannot be followed with reasonable diligence. The Court of Appeal agreed that a trial preference could not reasonably be granted in the JCCP and indicated that section 36—which historically had been interpreted to supersede other statutes and rules—could be overcome even when its terms were met. The Court of Appeal explained that the phrase "[n]otwithstanding any other provision of law" demonstrated the legislature's intent for rules governing JCCPs to override other legal provisions. The California Supreme Court refused to reconsider the Court of Appeal's decision.  

The Isaak opinion has important ramifications for JCCP proceedings. For most coordination proceedings to succeed, coordination judges need to exercise discretion over the ordering of discovery and trials, particularly bellwether trials. The Court of Appeal's opinion safeguards that discretion, ensuring that coordination judges can manage JCCPs without having to prioritize preference trials over bellwethers or staged discovery. More generally, the Isaak opinion establishes that the legislature's use of the phrase "notwithstanding any other provision of law" demonstrates its intent to supersede section 36, potentially subjecting the preference provision to additional challenges under other statutes and rules containing this language. The decision thus strengthens the position of California litigants who seek to limit section 36's application. 


Insights by Jones Day should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of the Firm, to be given or withheld at our discretion. To request permission to reprint or reuse any of our Insights, please use our “Contact Us” form, which can be found on our website at This Insight is not intended to create, and neither publication nor receipt of it constitutes, an attorney-client relationship. The views set forth herein are the personal views of the authors and do not necessarily reflect those of the Firm.