Skip to main content

Can I file a motion to demand my civil case move forward or file for dismissal due to petitioner's counsel delay/ continuance?

Santa Rosa, CA |
Filed under: Civil motions

I am presently a defendent in a criminal trial and a respondant to a civil trial in which both cases are based on the same incident/event of false DV claims. I was granted several continuances for my civil trial in order to try the criminal issues first. My criminal trial has been continued multiple times due to availablility of the DA and court. I have since proceeded with hearing of the civil case prior to the criminal case and am on calendar for several dates this month (90 days advance scheduling). The petitioner's counsel (legal aid) is not prepared and does not wish to try the civil case prior to the criminal trial and is asking for a continuance. She also does not want her client, the petitioner, to be cross-examined due to the possible impact of her statements onthe criminal trial.

Attorney Answers 3


You don't indicate how old the civil case is, but unless it is over 2 years old, you probably won't be able to get a discretionary dismissal, and unless it is more than 5 years old, you probably won't be able to get a mandatory dismissal.

Regardless, it is unlikely the civil court will advance the civil trial. It is often the case that the civil and criminal charges against the defendant stem from the same core set of facts. If the civil and criminal cases against such defendant are allowed to proceed abreast, that defendant will soon be faced with the untenable choice of defending himself in criminal court while facing a significant risk of losing substantial property or defending himself in civil court while facing a significant risk of losing substantial personal liberty. That forced dichotomy comports with neither governing case law nor governing statutes. (Cal. Evid. Code § 940; Code Civ. Proc.§ 2016(a).) Therefore, the remedy is often for the court in the civil case to issue a stay of the proceedings pending a final outcome in the criminal case.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult with your own attorney.

Mark as helpful

2 lawyers agree


Why would you try the civil matter first and put you at risk in the criminal case. Hire a lawyer ASAP.

Mark as helpful

2 lawyers agree


Although you don't describe the charges, generally I would say that the criminal case should be a defendant's focus of concern when compared to the potential repercussions of a civil claim. And, as they say on TV, anything you say in your civil case and and will be used against you in your criminal proceeding. So, it would be a fool's errand to provide the DA with a free set of sworn statements that could be used in your criminal case by putting the civil case out front.

Mark as helpful

1 lawyer agrees

Civil motions topics

Recommended articles about Civil motions

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics