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luckygerm

Request to Continue Discovery

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In California.

 

Defendant just won an ex parte motion to continue the case for 6 months.  This was 24 days before trial.  He also asked that discovery be cut off as if the continuance did not exist.  Both were granted. 

 

I figure, if I have six more montjhs, there is always more discovery I could do:  another set of special interrogatories, and more RFA;s.  I feel I have pertinent information vital to the case that is necessary to obtain by more discovery. 

 

I feel that to allow another 6 months, but not let me obtain this information would be prejudicial to my right to due process.  How do I go about asking the judge to allow a little more discovery time?  What type of papers do I file? 

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Another thought:  I didn't mention the part that defendant stated in his ex parte motion that due to facts just obtained in a deposition only two weeks earlier that information would allow them to effectively submit a MSJ and that's why they wanted the continuance.  To prepare the MSJ  This is B.S.  because they didn't need the deposition to gain that information, they knew it all along.  And I think 6 months time to allow the other side to prepare a MSJ is completely unfair.  Further, they did not include information in the Declaration  of  clear and convincing evidence that the court must hear this matter immediately or irreparable harm will occur and there will be immediate danger. Also, in my opposition, I mentioned that the defense first mentioned filing a MSJ in one of their Case Management Statements over a year ago.  They should have been working on it all this time.  I think they just weren't ready for trial, and they did not have proper reason for the continuance. 

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One more thing.  I just received a notice from the Court Reporter who took the deposition saying that it is now available for my review and execution, and will be available for the next 30 days.  I don't know how these things usually work, but it seems strange to me that the defense attorney could say in his declaration and ex parte motion on Sept 13 that new facts just came to light in a depoisiton taken on August 30, when the letter to me saying the deposition is available for review for 30 days from Sept 16.  It seems that the defense attorney stated facts to the judge that were premature.  The deposition had not even been reviewed when he made his comments to the judge.  Can he do that before the deposition is even reviewed and executed by me?

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Defendant just won an ex parte motion to continue the case for 6 months.  This was 24 days before trial. 

 

I assume "continue the case" means that the trial was continued.

 

 

 

I feel that to allow another 6 months, but not let me obtain this information would be prejudicial to my right to due process.  How do I go about asking the judge to allow a little more discovery time?  What type of papers do I file? 

 

You would file a noticed motion or, if grounds exist, make an ex parte application.  However, just because you "could do" more discovery doesn't mean that the court's ruling somehow violates or is prejudicial to your "right to due process."  The default rule in California civil actions is that, when a trial date is continued, the discovery cutoff does not automatically get continued along with it.  You said that the defendant in your case asked for, and that the court ordered, that very result.  The problem you will have at this point is that the court has already considered and ruled on this very issue.  Did you appear at the hearing on the defendant's ex parte application?  Did you submit any sort of written opposition or make an argument to the court in which you asked that the discovery cutoff be continued along with the trial?  Why should the court now rule exactly the opposite of what it already ruled?  When was the case filed in the first place (i.e., how much time have you already had to take discovery)?

 

 

 

defendant stated in his ex parte motion that due to facts just obtained in a deposition only two weeks earlier that information would allow them to effectively submit a MSJ and that's why they wanted the continuance.  To prepare the MSJ  This is B.S.  because they didn't need the deposition to gain that information, they knew it all along. 

 

You made this very argument to the court at the hearing on the ex parte application.  Correct?  If you didn't, why not?  If you did, then the court has already considered and rejected your argument.  Right?

 

 

 

And I think 6 months time to allow the other side to prepare a MSJ is completely unfair. 

 

Why?  By statute, a motion for summary judgment must be made at least 30 days before the trial date, and the moving party must file and serve the motion at least 75 days before the hearing date (plus an additional five days if the motion is served by mail).  So that's already 105-110 days, which means your defendant has 70-75 days to draft the motion and the required supporting documents.  That's hardly unreasonable, and it may well be the case that the court couldn't have given you an earlier trial date even if it wanted to.  Also, courts typically set multiple cases for trial on any given date on the reasonable assumption that most or all of them will settle.  As a particular trial date draws near, the court will know better what it's calendar will look like, so it's entirely possible that the court already knew that your trial date in three weeks wouldn't happen anyway.

 

 

 

Further, they did not include information in the Declaration  of  clear and convincing evidence that the court must hear this matter immediately or irreparable harm will occur and there will be immediate danger. 

 

Rule 3.1332 of the California Rules of Court expressly allows an application for a trial continuance to be made on an ex parte basis, so no such showing is required.

 

 

 

in my opposition, I mentioned that the defense first mentioned filing a MSJ in one of their Case Management Statements over a year ago.  They should have been working on it all this time. 

 

I don't think I've ever filed a CMC statement in which I didn't mention the possibility of filing a MSJ.  That doesn't mean I have to start working on one right away.  CMCs generally happen early in the case, before any significant discovery has occurred.

 

 

 

It seems that the defense attorney stated facts to the judge that were premature.  The deposition had not even been reviewed when he made his comments to the judge.  Can he do that before the deposition is even reviewed and executed by me?

 

So the deposition occurred approximately two weeks before the ex parte application was made?  The defendant's lawyer almost certainly had a copy of the transcript and, even if he didn't obviously was present when the deposition was taken, so he obviously knew how you testified.  Just because you haven't yet signed the transcript doesn't mean that it was improper for the attorney to tell the court that you testified in a manner that warrants an MSJ.  If you disagreed with the attorney's characterization of your testimony, it was incumbent on you to call that to the court's attention.

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Yes.  I showed up at the ex parte hearing and sat outside whilst the paperwork was supposedly looked over.  I filed an oppostion, although (not unlike a moron) I did not ask to continue the discovery. 

 

In my opposition, I pointed out that the defendant did not obtain the information they mentioned only a week earlier, but that they had had it for over a year.  I also pointed out that the defedant's ex parte motion did not contain the necessary requirement which is a description of who will be harmed if the ex parte motion is not granted, and why it is an emergency so as to necessitate such a filing.  I pointed out and attached evidence of a recent visit I had to make to the hospital emergency room due to having heart attack symptoms.  Wasn't a heart attack, but it was GERDS, which is brought on from stress.  I stated to the judge that no immediate danger would come to the defendant from not getting his case continued, but it might come to myself because of the prolonged stress affecting my health because of this case. 

 

I also attached a copy of a Case Managment Statement from the defendant dated over one year ago, in which he stated he was going to file a MSJ.  Therefore, how could he request another 6 months to file a MSJ, based on him saying that he just got "new information" when he already planned to file one about 18 months ago?  It seems he should have been working on it all that time, not just now requesting to continue the trial 24 days before trial call...which is what I pointed out to the judge. 

 

Also, I gave actual case citations in my opposition, and the defense only listed rules of court which were interpreted to model its needs.  They failed to list one case citation in their motion.

 

For all these reasons, I opposed the continuance.  Yet it was still granted.  Is there anything I can file to ask the court for an explanation of the law as it pertains to the decision that the judge made?  It doens't seem right that this was granted.  Something about the granting of this rubs me wrong in my gut.

 

And I just learned information (correct me if I'm wrong) that the motion for continuing the trial must be made before the settlement conference (which it was) but also before the settlement conference statement is due.  The statement was due 5 days prior to the 17th.  Would this be court days, or calendar days?  I turned in my statement on the 10th, served it on the defendant and filed it with the court, and I never received a copy of the defendant's statement.  The ex parte motion was made and heard on the 12th.  Did the defendant meet the deadline for timing on the continuance?  (I know I might be grasping at straws, but sometimes those deadlines can change the outcome if they are not met.)

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One more thing....the defendant stated to the judge that this "new information" they just got in the deposition they gave me made necessary the continuance so they could file a MSJ based on the info they got in the deposition "just two weeks" prior. You know, my copy of the deposition was dated Sept 18 from the Court Reporting Company. This is when they mailed it to me and said it is ready for review and execution. i had not even reviewed it yet when the defense told the judge they had received this "new information" in the deposition. If the ex parte motion was filed on Sept. 12 and the deposition wasn't even finished for me to review yet, it appears that counsel for the defense may have been jumping the gun when they told the judge they had this information. It doens't look like they concretely even had it yet, based on the above paragraph. If so, how do I present that information to the court? Thanks for your help.

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Is there anything I can file to ask the court for an explanation of the law as it pertains to the decision that the judge made?

 

Sure, but the judge doesn't have to give you one, and the law is that, while trial dates are to be considered firm, the trial judge has virtually absolute discretion to control and adjust his/her calendar.  As I said previously, it's entirely possible that the judge knew at the time of the ex parte application that your trial wouldn't happen as scheduled and, therefore, didn't have any problem granting the defendant's request even though there may have been some holes in his story about when he acquired certain information.

 

I responded to the question about the timing of the depo transcript in the other thread you started on this same subject.

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