Per my knowledge , motion for summary judgment needs to be filed 80 days away for the hearing , and it shall also be filed after discovery is complete . Currently trial date is not set yet . In a month or so , there will be a trial setting meeting . Discovery is in progress by both parties . Assuming discovery will be completed in day X , the motion will be scheduled at least X + 80 , but what if the trial is set at an earlier date ?
At the Case Management Conference (or Trial Setting Conference), you need to let the judge know that you are contemplating filing a Motion for Summary Judgment so that the trial date can be set far enough out to facilitate the 75 day notice period (plus the 30 days before trial cut off).
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 Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
Lawsuit / Dispute Attorney
You are mistaken about assuming that all discovery must be complete before filing a motion for summary judgment. Indeed, many summary judgment motions are filed soon after the case began or after receiving clear proof from a party or from a third-party witness, that supports the summary judgment. In Superior Court, discovery closes 30 days before trial and motions for summary judgment must be heard at least 30 days before trial. Thus, the hearing must be set well in advance of trial, regardless of when discovery closes.
I'd suggest that you contact an experienced litigation attorney before filing such a motion for the following reasons: (a) most motions for summary judgment are denied, because it can be very challenging to satisfy the judge that there are no material facts in dispute, and (b) it reveals the moving party's trial strategy which then results in the other side being able to better prepare for that at trial, after they defeat the motion for summary judgment.
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Divorce / Separation Lawyer
I agree that Mr. Chen has given you appropriate advice. In addition I would suggest that prior to your Trial Setting Conference that you call and confirm a date for your Motion for Summary Judgment. This may give you a little more credibility in the Judge’s eyes in that you are really gong to file a Motion for Summary Judgment not just trying to stall and delay this litigation. Make sure you give yourself enough time to timely, prepare, file and serve the motion.
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