CA - Motion to proceed to the trial of a special defense

[Greg Loomis]

What is the name of your state? California

I am the defendant in a civil suit and I am representing myself.

In my answer I claimed an affirmative defense that does not involve the merits of the plaintiff's cause of action. I would like to make a motion to proceed to the trial of that special defense pursuant to CCP 579:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=588-598

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;

It looks like I can make this motion at any time before the trial of any other issue in the case. I would like to make this motion in writing because it will let present facts without interference from the oposition.

Is this too weird?

Does anyone here have any experience with this stuff?

 

[dcatz]

Greg – (Can we call you Greg at this point? It’s as if we’re going through this trial with you, and it seems comfortable.)

If you’re posing that question to California litigators on the forum, it’s just my guess, because I think that animal is here, but I think you may be dealing with a rather small sample group. If asking for those who have dealt with such a motion, the sample may get smaller still. You’ll see from other responses.

The statute is what it is. Given what you’ve emphasized (and, by extension, de-emphasized), and not knowing the nature of your Affirmative Defense, it would be hard to say that it’s “too weird”. I would only say that, if you consider the portion of the statute that you omitted, I think it’s more common that the issues which this cite addresses are dealt with by demurrer or aren’t present.

Obviously, the statute takes cognizance of issues that don’t appear on the face of the pleading and provides a mechanism to efficiently address them, but you may be the first who tries to. That’s limited to my experience and knowledge; I may be wrong. Wait for other responses. Otherwise, let us know how you come out.