Legal Question in Civil Litigation in California

Elderly & Disabled Plaintiff had filed & served a Case Management Conference statement, but couldn't appear at the CMC hearing due to illness. The court however set a Trial date 10 months from now... In the CMC statement, the Plaintiff had checked the Trial Setting Preference box, to indicate that trial be set within 4 months, but the court didn't set trial within 4 months. My question is: Does Plaintiff have grounds to file & serve a Motion To Reconsider (CCP 1008a) the court's CMC ruling of setting the trial date too far, and have the court re-set trial date within 4 months, and in the Motion state the evidence and declaration for Trial Setting Preference (CCP 36 et seq.) requirements...Or would it be better for Plaintiff to file and serve a Motion For Preference via Ex-Parte concurrently with the Motion To Reconsider (CCP 1008a) Ex-Parte too (within 10 calendar days per code).


Asked on 1/27/16, 4:56 pm

1 Answer from Attorneys
Melody Kramer Kramer Law Office, Inc.

Not sure what county this case is in, but can provide you with general insight from my experience in San Diego courts. A motion to reconsider should be reserved for substantive matters, not scheduling matters as is the issue here. It would be helpful to contact the opposing counsel and see why the trial was set for 10 months away; it may have been within standard time frames and the court didn't even notice the request for earlier (hard to tell with the information available). In the future, if it is at all possible, if there is illness precluding a party from attending court, at least call the court to advise what is going on; its may not be a proper procedural mechanism for getting a continuance, but at least the court has a note of why you aren't there.

I'm not very familiar with a Motion for Preference, but I assume that has to do with age and/or health of the party. That seems like an appropriate mechanism, along with a request that the court shorten time for trial based on those factors.

Good luck!

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Answered on 1/28/16, 6:17 am


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