Legal Question in Civil Litigation in California
I am in an unlawful detainer with my Landlord. I served a discovery almost two weeks ago and still nothing. I was told they have five days to respond and an additional five days mailing time, ten days.
I want to file a motion to compel. I will make this as an ex parte motion right because it's an unlawful detainer? I assume time is off the essence here.
Also, after the judge orders on my motion to compel, I'm told the plaintiff will have ten additional days to respond to everything I'm asking for. My questions is I dont want to receive the documents a day before trial because I wont have time to prepare my case. So do those ten days get added on their own to the trial date. That is, say the trial date is on the tenth of next month, after a motion to compel and the judge gives them ten additional days, does this automatically move the trial date to the twentieth of next month?
Or do I have to file another motion to request the trial date be moved after the motion to compel. Please any help on this would be might useful.
3 Answers from Attorneys
If you already have a trial date, you need a separate motion to continue the trial, although you can combine them into one hearing.
What Mr. McCormick is referring to is the fact that you may be facing a discovery cutoff prior to trial. As it currently stands, the discovery cutoff in unlawful detainer actions is governed by Code of Civil Procedure section 2024.040 subd. (b)(1). "This chapter does not apply to either of the following: ... Summary proceedings for obtaining possession of real property governed by Chapter 4 (commencing wih Section 1159) of Title 3 of Part 3. Except as provided in Sections 2024.050 and 2025.060, discovery in these proceedings shall be completed on or before the fifth day before the date set for trial."
This means that unless you have leave of court to complete discovery closer to the trial date (CCP, sect. 2024.050) or a stipulation with your opponent to complete discovery closer to the trial date, the discovery must be completed no later than 5 days prior to the date set for trial.
your motion is filed on five days notice. you can oppose a motion to set for trial (counter-memo) to set based on the fact that the discovery motion is pending. Additionally, you may want to personally serve the discovery motion so no additional time is added for mailing.
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