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RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 42219
Experience:  Texas lawyer for 30 years in Estate law
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New question ; how do we phrase a verbal motion today in

Customer Question

New question for Ray; how do we phrase a verbal motion today in court that stops the proceedings from going forth until the subpoena for girlfriend's dead executor's medical records have been produced. We need time to prove the dead executor's incapacity
to function as executor of girlfriend's estate for the past year of his life. Please give us examples of what we could say. We are In Pro Per in southern Cal
Submitted: 1 year ago.
Category: Estate Law
Expert:  RayAnswers replied 1 year ago.

Hi and welcome to JA. Ray here again to help you.

Here is the Rule that governs..

Rule 3.1332. Motion or application for continuance of trial

(a) Trial dates are firm

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.

(Subd (a) repealed and adopted effective January 1, 2004; amended effective January 1, 1995.)

(b) Motion or application

A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.

(Subd (b) amended effective January 1, 2007; previously amended effective January 1, 1995.)

(c) Grounds for continuance

Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause 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.

(Subd (c) amended effective January 1, 2007; adopted effective January 1, 2004.)

(d) Other factors to be considered

In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include:

(1)The proximity of the trial date;

(2)Whether there was any previous continuance, extension of time, or delay of trial due to any party;

(3)The length of the continuance requested;

(4)The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;

(5)The prejudice that parties or witnesses will suffer as a result of the continuance;

(6)If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

(7)The court's calendar and the impact of granting a continuance on other pending trials;

(8)Whether trial counsel is engaged in another trial;

(9)Whether all parties have stipulated to a continuance;

(10)Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and

(11)Any other fact or circumstance relevant to the fair determination of the motion or application.

(Subd (d) adopted effective January 1, 2004.)

See 5a this appears to fit your situation that more time is needed to complete discovery and is good cause to grant an oral continuance.The trial court has a lot of discretion here.Argue that the other side has not had time to respond and a continuance is good for both sides.

I appreciate the chance to help you again.Please let me know if you have more follow up.Thanks again.

Expert:  RayAnswers replied 1 year ago.

Good luck here with your motion.