2007 California Code of Civil Procedure Chapter 3. Issues--the Mode Of Trial And Postponements

CA Codes (ccp:588-598)

588.  Issues arise upon the pleadings when a fact or a conclusion of
law is maintained by the one party and is controverted by the other.
  They are of two kinds:
   1. Of law; and,
   2. Of fact.



589.  An issue of law arises:
   (a) Upon a demurrer to the complaint, cross-complaint, or answer,
or to some part thereof.
   (b) Upon a motion to strike made pursuant to Section 435, 436, or
473.


590.  An issue of fact arises:
   1. Upon a material allegation in the complaint controverted by the
answer; and,
   2. Upon new matters in the answer, except an issue of law is
joined thereon.



591.  An issue of law must be tried by the court, unless it is
referred upon consent; provided, however, that failure on the part of
any person filing any demurrer to prosecute the same may be
construed as a waiver of such demurrer, except as otherwise provided
in Section 430.80 of this code.



(592.) Section Five Hundred and Ninety-two.  In actions for the
recovery of specific, real, or personal property, with or without
damages, or for money claimed as due upon contract, or as damages for
breach of contract, or for injuries, an issue of fact must be tried
by a jury, unless a jury trial is waived, or a reference is ordered,
as provided in this Code.  Where in these cases there are issues both
of law and fact, the issue of law must be first disposed of.  In
other cases, issues of fact must be tried by the Court, subject to
its power to order any such issue to be tried by a jury, or to be
referred to a referee, as provided in this Code.



594.  (a) In superior courts either party may bring an issue to
trial or to a hearing, and, in the absence of the adverse party,
unless the court, for good cause, otherwise directs, may proceed with
the case and take a dismissal of the action, or a verdict, or
judgment, as the case may require; provided, however, if the issue to
be tried is an issue of fact, proof shall first be made to the
satisfaction of the court that the adverse party has had 15 days'
notice of such trial or five days' notice of the trial in an unlawful
detainer action as specified in subdivision (b).  If the adverse
party has served notice of trial upon the party seeking the
dismissal, verdict, or judgment at least five days prior to the
trial, the adverse party shall be deemed to have had notice.
   (b) The notice to the adverse party required by subdivision (a)
shall be served by mail on all the parties by the clerk of the court
not less than 20 days prior to the date set for trial.  In an
unlawful detainer action where notice is served by mail that service
shall be mailed not less than 10 days prior to the date set for
trial.  If notice is not served by the clerk as required by this
subdivision, it may be served by mail by any party on the adverse
party not less than 15 days prior to the date set for trial, and in
an unlawful detainer action where notice is served by mail that
service shall be mailed not less than 10 days prior to the date set
for trial.  The time provisions of Section 1013 shall not serve to
extend the notice of trial requirements under this subdivision for
unlawful detainer actions.  If notice is served by the clerk, proof
thereof may be made by introduction into evidence of the clerk's
certificate pursuant to subdivision (3) of Section 1013a or other
competent evidence.  If notice is served by a party, proof may be
made by introduction into evidence of an affidavit or certificate
pursuant to subdivision (1) or (2) of Section 1013a or other
competent evidence.  The provisions of this subdivision are
exclusive.



594a.  The court may, of its own motion, postpone the trial, if at
the time fixed for the trial the court is engaged in the trial of
another action; or if, as provided in section 473 of this code, an
amendment of the pleadings, or the allowance of time to make such
amendment, or to plead, renders a postponement necessary.




595.  The trial of any civil action, or proceeding in a court, or of
any administrative proceeding before a state board or commission or
officer, irrespective of the date of the filing thereof or when it
became at issue, or the hearing of any motion, demurrer, or other
proceeding, shall be postponed to a date certain when it appears to
the court, board, commission, or officer before which such action  or
proceeding is pending that either a party thereto, or any attorney
of record therein (whether he became an attorney of record before or
after the commencement of a legislative session or before or after
his appointment to a legislative committee), or a principal witness,
is a Member of the Legislature of this state and that the Legislature
is in session or in recess (not exceeding a recess of forty (40)
days) or that a legislative interim committee of which he is a duly
appointed member is meeting, or is to meet within a period which the
court finds does not exceed the time reasonably necessary to enable
the member to reach the committee meeting by the ordinary mode of
travel.  When the Legislature is in session or in recess such action
or proceeding shall not, without the consent of the attorney of
record therein, be brought on for trial or hearing before the
expiration of thirty (30) days next following final adjournment of
the Legislature or the commencement of a recess of more than forty
(40) days.  If a date is available during recess, continuance shall
be given if possible to such earlier date.  When a legislative
committee is meeting or is to meet within a period which the court
finds does not exceed the time reasonably necessary to enable the
member to reach the committee meeting by the ordinary mode of travel,
such action or proceeding shall not, without the consent of the
attorney of record therein, be brought on for trial or hearing before
the expiration of such period necessary following the adjournment or
recess of the committee meeting as the court finds is reasonably
necessary to enable the member to reach the place of trial or hearing
by the ordinary mode of travel from the place of the committee
meeting, unless at the expiration of that period the Legislature is
to be in session; and in that case the action or proceeding shall
not, without such consent, be brought on for trial or hearing before
the expiration of thirty (30) days next following final adjournment
or the commencement of a recess of more than forty (40) days.  If a
date is available during the recess, continuance shall be given to
such earlier date.  However, any postponement granted under the
provisions of this paragraph shall suspend for the same period of
time as the postponement, the running of any period of time for any
ruling or proceeding by a court, board, commission, or officer, or
for the performance by any party of any act affected by said
postponement.
   Granting of a continuance pursuant to this section is mandatory
unless the court determines that such continuance would defeat or
abridge a right to relief pendente lite in a paternity action or a
right to invoke a provisional remedy such as pendente lite support in
a domestic relations controversy, attachment and sale of perishable
goods, receivership of a failing business, and temporary restraining
order or preliminary injunction, and that the continuance should not
be granted.



595.1.  The term "proceeding in a court" as it is used in Section
595 shall include any discovery proceeding, pretrial conference,
deposition, interrogatory, or any other proceeding arising out of a
pending civil action.
   The enactment of this section at the 1965 Regular Session of the
Legislature does not constitute a change in, but is declaratory of,
the preexisting law.


595.2.  In all cases, the court shall postpone a trial, or the
hearing of any motion or demurrer, for a period not to exceed thirty
(30) days, when all attorneys of record of parties who have appeared
in the action agree in writing to such postponement.




595.3.  In actions involving the title to mining claims, or
involving trespass for damage upon mining claims, if it be made to
appear to the satisfaction of the court that, in order that justice
may be done and the action fairly tried on its merits, it is
necessary that further developments should be made, underground or
upon the surface of the mining claims involved in such action, the
court shall grant the postponement of the trial of the action, giving
the party a reasonable time in which to prepare for trial and to do
said development work.


595.4.  A motion to postpone a trial on the ground of the absence of
evidence can only be made upon affidavit showing the materiality of
the evidence expected to be obtained, and that due diligence has been
used to procure it.  The court may require the moving party, where
application is made on account of the absence of a material witness,
to state upon affidavit the evidence which he expects to obtain; and
if the adverse party thereupon admits that such evidence would be
given, and that it be considered as actually given on the trial, or
offered and overruled as improper, the trial must not be postponed.



596.  The party obtaining a postponement of a trial, if required by
the adverse party, must consent that the testimony of any witness of
such adverse party, who is in attendance, be then taken by deposition
before a judge or clerk of the court in which the case is pending,
or before such notary public as the court may indicate, which must
accordingly be done; and the testimony so taken may be read on the
trial, with the same effect, and subject to the same objections, as
if the witnesses were produced.



597.  When the answer pleads that the action is barred by the
statute of limitations, or by a prior judgment, or that another
action is pending upon the same cause of action, or sets up any other
defense not involving the merits of the plaintiff's cause of action
but constituting a bar or ground of abatement to the prosecution
thereof, the court may, either upon its own motion or upon the motion
of any party, proceed to the trial of the special defense or
defenses before the trial of any other issue in the case, and if the
decision of the court, or the verdict of the jury, upon any special
defense so tried (other than the defense of another action pending)
is in favor of the defendant pleading the same, judgment for the
defendant shall thereupon be entered and no trial of other issues in
the action shall be had unless that judgment shall be reversed on
appeal or otherwise set aside or vacated; and where the defense of
another action pending or  a demurrer based upon subdivision (c) of
Section 430.10 is sustained (and no other special defense is
sustained) an interlocutory judgment shall be entered in favor of the
defendant pleading the same to the effect that no trial of other
issues shall be had until the final determination of that other
action, and the plaintiff may appeal from the interlocutory judgment
in the same manner and within the same time as is now or may be
hereafter provided by law for appeals from judgments.  If the
decision of the court, or the verdict of the jury, upon the special
defense or defenses so tried is in favor of the plaintiff, trial of
the other issues shall thereafter be had either upon the court's own
motion or upon the motion of any party, and judgment shall be entered
thereon in the same manner and with the same effect as if all the
issues in the case had been tried at one time.  In such an event any
and all decisions or verdicts upon the special defense or defenses,
and all rulings on the trial thereof shall be deemed excepted to and
may be reviewed on motion for a new trial or upon appeal from the
judgment.
   This section also applies to the trial of special defenses pleaded
in an answer to a cross-complaint or a demurrer based upon
subdivision (c) of Section 430.10, and if the decision of the court
or the verdict of the jury upon the special defense or defenses is in
favor of the cross-defendant, no further trial shall be had upon the
issues raised by the cross-complaint, but trial of the other issues
in the action shall thereafter be had either upon the court's own
motion or upon the motion of any party, and after the trial thereof
the judgment shall be entered in the action as is justified by the
decision or verdict on such other issues, considered in connection
with the decision or verdict upon the trial of such an affirmative
defense raised in the answer to the cross-complaint.



597.5.  In an action against a physician or surgeon, dentist,
registered nurse, dispensing optician, optometrist, registered
physical therapist, podiatrist, licensed psychologist, osteopathic
physician and surgeon, chiropractor, clinical laboratory bioanalyst,
clinical laboratory technologist, veterinarian, or a licensed
hospital as the employer of any such person, based upon the person's
alleged professional negligence, or for rendering professional
services without consent, or for error or omission in the person's
practice, if the answer pleads that the action is barred by the
statute of limitations, and if any party so moves or the court upon
its own motion requires, the issues raised thereby must be tried
separately and before any other issues in the case are tried.  If the
issue raised by the statute of limitations is finally determined in
favor of the plaintiff, the remaining issues shall then be tried.



598.  The court may, when the convenience of witnesses, the ends of
justice, or the economy and efficiency of handling the litigation
would be promoted thereby, on motion of a party, after notice and
hearing, make an order, no later than the close of pretrial
conference in cases in which such pretrial conference is to be held,
or, in other cases, no later than 30 days before the trial date, that
the trial of any issue or any part thereof shall precede the trial
of any other issue or any part thereof in the case, except for
special defenses which may be tried first pursuant to Sections 597
and 597.5.  The court, on its own motion, may make such an order at
any time.  Where trial of the issue of liability as to all causes of
action precedes the trial of other issues or parts thereof, and the
decision of the court, or the verdict of the jury upon such issue so
tried is in favor of any party on whom liability is sought to be
imposed, judgment in favor of such party shall thereupon be entered
and no trial of other issues in the action as against such party
shall be had unless such judgment shall be reversed upon appeal or
otherwise set aside or vacated.
   If the decision of the court, or the verdict of the jury upon the
issue of liability so tried shall be against any party on whom
liability is sought to be imposed, or if the decision of the court or
the verdict of the jury upon any other issue or part thereof so
tried does not result in a judgment being entered pursuant to this
chapter, then the trial of the other issues or parts thereof shall
thereafter be had at such time, and if a jury trial, before the same
or another jury, as ordered by the court either upon its own motion
or upon the motion of any party, and judgment shall be entered in the
same manner and with the same effect as if all the issues in the
case had been tried at one time.