Code Section Group

Code of Civil Procedure - CCP

PART 2. OF CIVIL ACTIONS [307 - 1062.20]

  ( Part 2 enacted 1872. )

TITLE 8. OF THE TRIAL AND JUDGMENT IN CIVIL ACTIONS [577 - 674]

  ( Title 8 enacted 1872. )

CHAPTER 3. Issues—The Mode of Trial and Postponements [588 - 598]
  ( Chapter 3 enacted 1872. )

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.

(Enacted 1872.)

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.

(Amended by Stats. 1983, Ch. 1167, Sec. 8.)

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.

(Enacted 1872.)

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.

(Amended by Stats. 1982, Ch. 704, Sec. 9.)

[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.

(Amended by Code Amendments 1873-74, Ch. 383.)

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.

(Amended by Stats. 2002, Ch. 784, Sec. 62. Effective January 1, 2003.)

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.

(Added by Stats. 1933, Ch. 744.)

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.

(Amended by Stats. 1968, Ch. 698.)

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.

(Added by Stats. 1965, Ch. 1890.)

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.

(Added by Stats. 1965, Ch. 1989.)

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.

(Added by Stats. 1965, Ch. 1989.)

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.

(Added by Stats. 1965, Ch. 1989.)

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.

(Amended by Stats. 1951, Ch. 1737.)

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.

(Amended by Stats. 1986, Ch. 540, Sec. 11.)

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.

(Amended by Stats. 1993, Ch. 226, Sec. 5. Effective January 1, 1994.)

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.

(Amended by Stats. 1979, Ch. 349.)

CCPCode of Civil Procedure - CCP