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What documents are needed to postpone Settlement Conference scheduled 7/24/13 & Trial scheduled 8/27/13? We are still awaiting

Roseville, CA |
Filed under: Litigation

Court's ruling on Summary Judgment Hearing from 2 mths ago. If Court denies MSJ, in my favor, thus allowing trial, then more discovery time is required before trial. What is required for a mutually agreed stipulation to postpone? What is needed for a unilateral motion to continue Settlement Conference & Trial? Thank you.

Attorney Answers 2

Posted

You can attempt to submit a stipulation to continue the settlement conference and trial. However, not all judges will accept a stipulation to continue. Basically, you need to present valid reasons. Trial continuances are disfavored. “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” (California Rules of Court, Rule 3.1332.)

The court may grant a continuance only upon an affirmative showing of good cause.

“The court must look beyond the limited facts which cause a litigant to request a last-minute continuance and consider the degree of diligence his or her efforts to bring the case to trial, including participating in earlier court hearings, conducting discovery, and preparing for trial.” (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395, citing Link v. Cater (1998) 60 Cal.App.4th 1315, 1324-1325.)

California Rules of Court, Rule 3.1332 defines the circumstances that may indicate good cause to include:

(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;

(2) The unavailability of a party because of death, illness, or other excusable circumstances;

(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;

(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;

(5) The addition of a new party if:

(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or

(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;

(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or

(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.

Therefore, whether you submit a stipulation or a motion, makes sure you cover one or more of the above reasons.

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.

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Asker

Posted

Thank you! Thorough and helpful.

Asker

Posted

1. Both sides may agree upon an affirmaive showing of good cause to continue MSC & Trial based on Ca Rules of Court, Rule 3.1332(7): We've been waiting 8+ weeks for Courts ruling on Summary Judgment Hearing and, therefore, Discovery and Trial prep has been postponed pending Court ruling on MSJ. 2. In addition, I can unilaterally argue Rule 3.1332(1), my essential witness is unavailable due to death, and Rule 3.1332(6) because Cross-Complaint &/or 3rd party has refused to provide material evidence, testimony, thus requiring that , I re-serve deposition Subpoenas and obtain evidence through other means. Opposing Counsel will agree to #1 above, but would be expected to balk at these last 2 arguments. 3. Strategy??? Would it be strategic to file a mutually agreeable stipulation/request using #1 above while at the same time submitting a unilateral motion using #1 & #2 above? Alternatively, If both sides agree to stipulation using #1 above, might I add #2 above even though opposing side objects or does not agree? A continuance is very important, whatever what it takes. ??? Thank you!

Asker

Posted

Trial Continuance was granted. Thank you for your info & feedback by which the motion was compiled.

Posted

talk to your lawyer. generally to continue a hearing an application to the court needs to be made either ex parte or by noticed motion explaining why the trial should be continued and supporting good cause.

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Thank you for your info & feedback. The Continuance was granted via Ex Parte.

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