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William B. Esq.
William B. Esq., Attorney
Category: Business Law
Satisfied Customers: 2677
Experience:  I am a civil litigation attorney with experience representing and advising HOAs, businesses, and individuals.
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I need to file a Request to Continue a Hearing in order to

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I need to file a Request to Continue a Hearing in order to do the following: (1) an appeal on a Judgement on the Pleadings of the party JE***, (2) file a lawsuit on another party GK*** previously served and (3) serve a Second Amended Complaint (not quite ready, but close to ready). How do I do this so the Court will actually grant my request? Is a Request to Continue enough? What else do I need to file? The new hearing is in the morning of the 7th of Feb.: OSC HEARING RE: DISMISSAL FOR FAILURE TO SERVE PURSUANT TO CCP 5583.210 and they want to do a Case Management Conference and OSC HEARING RE: DISMISSAL.
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02/07/2013 8:30 AM DEPT. 01 OSC HEARING RE: DISMISSAL FOR FAILURE TO SERVE PURSUANT TO CCP 5583.210 AS TO PR**** LLC (STATE OF **). Hearing Held ???????

02/07/2013 8:30 AM DEPT. 01 CASE MANAGEMENT CONFERENCE HEARING

01/31/2013 8:30 AM DEPT. 12 HEARING RESERVED FOR: MOTION FOR SECOND AMENDED COMPLAINT Vacated

N 01/28/2013 SYSTEM GENERATED NOTICE RE: CLERKS CERTIFICATE OF MAILING. Not Applicable

01/28/2013 MOTION HEARING RESERVATION MOTION FOR SECOND AMENDED COMPLAINT SET FOR 01/31/13 AT 08:30 IS VACATED (MOVING PAPERS NOT FILED). Not Applicable

01/28/2013 8:00 AM DEPT. 01 COURT ON ITS OWN MOTION: SET CASE MANAGEMENT CONFERENCE.

N 01/22/2013 PROOF OF SERVICE OF EX PARTE APPLICATION FOR EXTENTION OF TIME SERVED ON JE*** SERVED 01/14/13 FILED (NON-COMPLAINT) NotApplicable

N 01/18/2013 SYSTEM GENERATED NOTICE RE: ORDER TO SHOW CAUSE HEARING SET FOR 2/7/13. Not Applicable

N 01/18/2013 EX PARTE APPLICATION AND ORDER RE EXTENSION OF TIME TO SERVE FILED BY DA**** DENIED; HONORABLE JUDGE S***. Not Applicable

Minutes

COURT SETS THE FOLLOWING ORDER TO SHOW CAUSE:
ORDER TO SHOW CAUSE RE: DISMISSAL FOR FAILURE TO SERVE PR*** LLC (STATE OF **)

PURSUANT TO CCP 583.210 SET FOR 2/7/13 AT 8:30 IN DEPARTMENT 01.
ORDER TO SHOW CAUSE RE: DISMISSAL FOR FAILURE TO SERVE PURSUANT TO CCP 5583.210 AS TO PR** LLC (STATE OF **)

SET 02/07/13 AT 08:30 IN DEPT. 01.
ORDER TO SHOW CAUSE ISSUED
Submitted: 1 year ago.
Category: Business Law
Expert:  William B. Esq. replied 1 year ago.

Dear Customer,

Regarding your motion, I am unclear from the portion of the register of actions which motion you need to continue in order to meet your needs. While I understand that I cannot see all of the hearing dates and review all of the issues going on in your case, the only hearing date that I see is your upcoming CMC and OSC hearing on the 7th. There is generally no need to seek a continuance of either of these types of hearings, and courts are unlikely to grant one.

 

Please note, when I say this, I am trying to make a distinction between making a motion to continue the currently set hearing, and what courts say when they "continue the case management conference" to a date in the future. In most CMCs, the court will simply say that the parties are to return at some future date to see what the status of the case is at that time.

The purpose of the CMC hearing is to see what the procedural status of the case is, what the parties need to do to get the case prepared for trial (if there are outstanding parties that need to answer a complaint, what discovery is outstanding, etc.). The Court will not rule on a substantive matter of law on a CMC calendar. With regard to your OSC on failure to serve, you need to be able to show the Court why you have not served the other party, how quickly you can get that party served, and will give you a return date to get service completed. While it is possible to have a case dismissed for failure to serve, this only happens when the plaintiff has delayed for an extended period of time and has shown no effort to move the case forward (appears to be wasting the court's time or is acting in an otherwise dilatory fashion).

With regard to your specific issues you identified:

(1) You cannot extend the time in which to file an appeal of a judgment by continuing the hearing date. (Cal. Rule of Court 8.104) - in almost every case 60 days from the day of the court's mailing of notice of entry.

(2) In most situations, extending a hearing date in one trial will not make a difference in the ability to file a separate lawsuit. If your situation is different or special, you are working with some very technical aspects of civil procedure and should seek local legal counsel as this can be a difficult area to navigate without help (it is more complex than I can assist you with through this forum, as it would almost certainly involve the practice of law as opposed to providing legal principles and rules).

(3) If you are planning on serving a second amended complaint, you should be prepared to tell the Court at the CMC. You should be able to give the Court a specific time frame (for example 1-2 weeks, if you can deliver in that time frame, otherwise tell the court what you expect). The Court has a duty to manage its case load and ensure all of its matters go to trial within a set period of time, and if you appear diligent in your amendment and service, you should not have any problems (I cannot promise this of course, I do not know your judge, and do not know your case's history, but most courts I have practiced in are generous in allowing pleadings by pro per plaintiffs so long as it does not appear they are delaying the proceedings.

I hope this helps, please let me know if I can be of any further assistance. If I missed or misunderstood anything, please let me know so that I can properly answer your question (this sometimes happens in this type of forum and I do want to ensure that I address everything).

Best regards,
Bill

William B. Esq., Attorney
Category: Business Law
Satisfied Customers: 2677
Experience: I am a civil litigation attorney with experience representing and advising HOAs, businesses, and individuals.
William B. Esq. and 5 other Business Law Specialists are ready to help you
Expert:  William B. Esq. replied 1 year ago.

Dear XXX,

Thank you for the kind rating, it is greatly appreciated. I wish you the best of luck with this matter. If you have further questions regarding this type of issue, or any other legal matter, please do not hesitate to use our service in the future. You may post a question for any of our experts in general, or to me directly by titling your question “To CalAttorney 2…” or using the link: http://www.justanswer.com/law/expert-wdb-esq/

Best regards, and thank you,

Bill

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