XXX
XXX
XXX
XXX
Plaintiff in Pro Per
| SUPERIOR COURT OF THE STATE OF XXX
FOR THE COUNTY OF XXX
|
NOTICE TO DEFENDANT KAISER FOUNDATION HOSPITALS AND TO THEIR ATTORNEY(S) OF RECORD AND SPECIAL NOTICE TO THIS HONORABLE COURT:
NOTICE IS HEREBY GIVEN that on [ENTER DATE] at XXX a.m. or as soon thereafter as the matter may be heard, in Department 26 of this court located at XXX, Plaintiff, XXX (hereinafter “Plaintiff”) will, and hereby does, move for an Order continuing the hearing of the Order to Show Cause Re: Posting of Security, and the hearing on Motion for Leave to File First Amended Complaint, which were scheduled for XXX. Plaintiff seeks the hearing date be continued to a future date in October when she recovers from her illness.
This Motion is made on the grounds that Plaintiff is unwell and is unwell and is seeking medical attention.
This Motion is based on this Notice, the attached Memorandum of Points and Authorities, the pleadings herein, the Declaration in Support, and on such further oral and/or documentary evidence as may be presented or judicially noticed at the hearing of this Motion.
Respectfully submitted,
XXX
______________________________
XXX
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
STATEMENT OF FACTS
On XXX, Defendant filed an Ex Parte Application (Defendant’s Ex Parte Application for Order Dismissing Plaintiff’s Complaint Pursuant to CCP 391.3 (b)). On XXX, Defendant filed a Notice of Ruling with regards to the said ex parte application. On XXX, Plaintiff filed a Response to Defendant’s Notice of Ruling. On XXX, Defendant filed a Notice (Defendants’ Statement Re: June XXXOrder to Show Cause Re: Posting of Security. Consequently, on XXX, the Court issued an Order to Show Cause Re: Posting of Security. The Court then set the hearing date for said Order to Show Cause, at XXX at XXX am.
Plaintiff also filed her Motion for Leave to File her First Amended Complaint on XXX. The Court set the hearing date for said motion at XXX at XXX am.
However, Plaintiff is unwell, and is in no capacity to enter appearance for the said hearing set for XXXX.
LEGAL ARGUMENT
Good cause exists to extend the hearing date and grant a continuance
California Rules of Court, Rule 3.1332 sets forth a non-exclusive list of factors to be considered by the court in determining whether or not to grant a continuance. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. (Rule 3.1332, subd. (c) and (d).) Examples of good cause include but are not limited to: (1) the unavailability of a party or trial counsel because of death, illness or other excusable circumstances, (2) a party’s excused inability to obtain testimony, documents, or other material evidence despite diligent efforts, and (3) a significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (Id.).
In XXX, the court noted that trial judges have a great deal of leeway in granting continuances. The court stated: “The factors which influence the granting or denying of a continuance in any particular case are so varied that the trial judge must necessarily exercise a broad discretion.” See also, XXX.
Courts must exercise discretion as to all interests involved in determining whether to grant a continuance, as a refusal may have the practical effect of denying the applicant a fair hearing. In XXX.
A continuance should be granted if failure to allow the continuance would probably or possibly prejudice the party seeking the continuance by depriving that party of the opportunity to present his case fully and fairly. In XXXX (emphasis added).
A trial court would be in abuse of its discretion when, considering all the relevant circumstances, the court exceeded the bounds of reason or it can be said that no judge would reasonably make the same order under the same circumstances. In XXX.
Rule 3.1332(d) states, in part:
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 the following factors:
a.) The proximity of the trial date;
b.) Whether there was any previous continuance, extension of time, or delay of trial due to any party;
c.) The length of the continuance requested;
d.) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;
e.) The prejudice that parties or witnesses will suffer as a result of the continuance;
f.) 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;
g.) The court’s calendar and the impact of granting a continuance on other pending trials;
h.) Whether trial counsel is engaged in another trial;
i.) Whether all parties have stipulated to a continuance;
j.) 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,
k.) Any other fact or circumstance relevant to the fair determination of the motion or application.
(XXX Rules of Court, Rule 3.1332(d).)
In the instant case, Plaintiff is unwell and is seeking medical attention. She cannot effectively argue her position with respect to the Order to Show Cause Re: Posting of Security effectively by reason of her illness. She also needs to be in good health to present her arguments why she is entitled to present her First Amended Complaint.
Besides, in satisfying the factors stated under Rule 3.1332(d), Plaintiff points out that:
- The hearing date is XXX, which is not many days from the date Plaintiff files this motion;
- Plaintiff has never delayed the trial of this matter;
- Plaintiff requests continuance to a later date in October, when she will have recovered fully from her illness;
- It would be in the interest of justice to grant the continuance, since she needs to respond to the Court’s Order to Show Cause Re: Posting of Security. She also needs to convince the Court why she should be granted leave to file her First Amended Complaint;
- The Defendant will not suffer any known prejudice if the court grants this continuance;
- The need for continuance outweighs the need to avoid delay. She cannot effectively argue her position with respect to the Order to Show Cause Re: Posting of Security effectively by reason of her illness. She also needs to be in good health to present her arguments why she is entitled to present her First Amended Complaint.
- Although Plaintiff has no knowledge of the Court’s calendar, granting continuance would not interfere with other trial dates;
- The interests of justice are best served by a continuance. Plaintiff cannot effectively argue her position with respect to the Order to Show Cause Re: Posting of Security effectively by reason of her illness. She also needs to be in good health to present her arguments why she is entitled to present her First Amended Complaint.
CONCLUSION
The factors enumerated above weigh in favor of granting the requested continuance of the trial date pursuant to Rules 3.1332 and 3.1335. Therefore, good cause exists to grant the requested continuance and schedule the hearing set for XXX to a future date in the Court’s discretion.
DATED: _______________
Respectfully submitted,
XXX
______________________________
XXX
XXX
Plaintiff in Pro Per
| SUPERIOR COURT OF THE STATE OF XXX
FOR THE COUNTY OF XXX
|
I, ESTHER TENDO ATAM, declare that:
- I am the Plaintiff in the above-titled matter.
- This Court set a hearing for my Motion for Leave to File her First Amended Complaint on XXX. The Court also set a hearing for the Court’s Order to Show Cause Re: Posting of Security, on the same date.
- I am currently unwell and am seeking medical attention.
- I am in no capacity to enter appearance for the said hearing set for XXX.
- I will suffer drastically if the hearing date is not continued. Notably, I cannot effectively argue my position with respect to the Order to Show Cause Re: Posting of Security effectively by reason of my illness. I also need to be in good health to present my arguments why I am entitled to present my First Amended Complaint.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Dated: ________________
Respectfully submitted,
XXX
______________________________
XXX
XXX
Plaintiff in Pro Per
| SUPERIOR COURT OF THE STATE OF XXX
FOR THE COUNTY OF XXX
|
THIS MATTER came on to be heard on __________________________ upon (date) Plaintiff XXX Motion for Continuance.
The court, having considered the matter finds that the Motion for Continuance should be granted.
IT IS THEREFORE ORDERED that the matter scheduled before the court shall be continued to_______________________________ at ____________.m., or as soon thereafter as may be heard.
It is so ordered.
Date:
________________________________
Hon. _______________
CERTIFICATE OF SERVICE
I hereby certify that on ____________, copies of the foregoing document have been served upon the Defendant(s) in this case by personal delivery to his or her office at the following address:
XXX
Telephone: XXX
Facsimile: XXX
DATED: ____________
XXX
______________________________
XXX
At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, The LegalPen will be able to prepare the legal document within the shortest time possible. You can send us your quick enquiry ( here )