Ask the County Law Librarian – Motion to Continue Trial
Q. I was sued for $15,000 about a year ago, and the first thing I did was hire an attorney my brother-in-law knew, as I have never been sued before, have never even been inside a court room, don’t know anything about the law, etc. Unfortunately, as time went on, it became obvious that the attorney and I did not see eye-to-eye and I felt that he was not really on my side in the case. Eventually he quit. I have been looking for a replacement for the last month; however, the lawyers that do manage to return my phone calls are either too busy, about to go on vacation, do not handle this type of case, or are way out of my price range. A couple of them have told me that even if they were able to take my case, there is no way they could be prepared in time for the trial; they would need more time to “discover” something; I don’t know what.
Help! What can I do?
A. Rule 3.1332(c) of the California Rules of Court allows the court to grant a continuance before trial upon an “affirmative showing of good cause.” Circumstances indicating good cause for a continuance include the unavailability of an essential witness; the unavailability of a party because of death, illness, or other excusable circumstances; or a significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. Your case may fit in this last category.
Motions to continue a trial are frowned upon by the courts because continuances interfere with a court’s ability to schedule its courtrooms efficiently, often creating a backlog of trial dates. For this reason, it is best to request a continuance as soon as you become aware that it will be needed. You should never depend on a continuance being granted; however, as a very real possibility exists that it may be denied, especially if there have already been several continuances in the case.
A request for a continuance is made through a motion. A “motion” is a request made in an ongoing case asking the court to issue an order of some sort. Most motions are in writing. There is no fill-in-the-blank form for making a motion. Instead, the motion must be typed on 28-line pleading paper. A written motion consists of four parts: 1) Notice of Motion; 2) Motion; 3) Points and Authorities; and 4) Declaration. The Notice of Motion lets the opposing party know when and where the motion is scheduled to be heard; while the Motion itself lets the court and opposing party know what is being requested. The Points and Authorities section explains to the court and the opposing party the legal basis of the motion, while the Declaration provides evidence, sworn under penalty of perjury, supporting the motion.
We have a guide to making a motion for a continuance on our website at http://www.saclaw.org/pages/motion-to-continue.aspx, complete with step-by-step instructions and a template you can download and tweak to fit the facts and circumstances of your case.
In Sacramento, the party requesting a continuance is responsible for setting the date for hearing the motion. There are two very important deadlines you must consider when setting the date of a motion: the filing deadline and the service deadline.
A motion must be filed with the court at least sixteen court days prior to the motion date. California Code of Civil Procedure §1005(b). Court days are Monday through Friday, excluding court holidays. To determine whether a particular filing date will meet this deadline, start with the first court day after the planned filing date as day one, and count forward sixteen court days. The first possible date the motion can be heard is day sixteen. The guide on our website includes a calendar to help you calculate your filing deadline.
Prior to filing the motion with the court, all other attorneys or self-represented parties in a case must be served with a copy of the motion. If the motion is personally served, the service must be at least sixteen court days prior to the date of the motion, the same as the minimum filing deadline. If the motion is served by first-class mail, additional time is added to the calculation, depending on where the mail originates and where it is sent. California Code of Civil Procedure §1005(b). For example, if the documents are mailed from California to an address in California, five calendar days are added after the sixteen court days. Calendar days include weekends and holidays, but if the final day lands on a weekend or holiday, it is rolled over to the next court day. The guide on our website also includes a calendar to help you calculate your service deadline.
If opposing counsel or self-represented party opposes your request for a continuance, he or she may serve and file an opposition at least nine court days prior to your motion date. You may serve and file a reply to the opposition at least five days prior to the motion.
Pursuant to Sacramento County Superior Court Local Rule 2.02(D), the court will make a tentative ruling on the merits of your matter by 2:00 p.m. the court day before the hearing. You may read the tentative ruling online, or call the Presiding Judge’s department to hear it. For information on how to view the ruling online, see the guide on our website at http://www.saclaw.org/pages/tentative-rulings.aspx.
If you are happy with the tentative ruling, you do not need to do anything. You won’t have to go to court unless ordered to appear in the tentative ruling or unless the other side calls you and the court between 2:00 p.m. and 4:00 p.m. the court day before your hearing date to request an oral argument in front of the judge. If that happens, you should go to the court hearing and be prepared to argue your case.
If you are not happy with the tentative ruling, and wish to present arguments in front of the judge, you must call all opposing parties, opposing counsel, if any, and the clerk for department 47 no later than 4:00 p.m. the court day before your motion is scheduled to state that you are requesting oral argument on the motion. If neither you nor the opposing party requests oral argument, the court will simply make the tentative ruling the order of the court.
I hope this helps. Good luck with the continuance and finding a new attorney!
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