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.
§ 595.4.Motion to Postpone On Ground of Absence of Evidence
Title 8. Of the Trial and Judgment In Civil Actions · Chapter 3. Issues—The Mode of Trial and Postponements · Enacted 1965 · no amendments on record · Last verified July 28, 2026
In one sentenceSection 595.4 lets a party move to postpone trial on the ground that expected evidence is absent, but only by affidavit showing the evidence's materiality and the moving party's due diligence in trying to obtain it, and bars postponement if the adverse party admits the expected testimony would be given or lets it be treated as given or excluded.
Full Text of § 595.4
Plain-English Summary
A party can't delay trial by saying evidence is missing, without more. Section 595.4 requires a motion to postpone on that ground to be supported by affidavit, showing both the materiality of the evidence the party expects to obtain and the due diligence already used to try to get it.
When the missing evidence is a witness's testimony, the court can require the moving party to state, under oath, exactly what testimony is expected. That opens a door for the adverse party to avoid the postponement entirely: if the adverse party admits the witness would give that testimony and agrees to treat it as if given at trial — or as offered and overruled as improper — the postponement must be denied.
Frequently Asked Questions
What must a motion to postpone for absent evidence include?
An affidavit showing the materiality of the expected evidence and the due diligence used to try to obtain it.
Can the court require details about the expected witness testimony?
Yes. The court may require the moving party to state, by affidavit, exactly what evidence is expected from an absent material witness.
How can the adverse party defeat this motion?
By admitting that the expected testimony would be given, and agreeing to treat it as given at trial, or as offered and overruled as improper — either way, the trial must not be postponed.
Amendment History
Added by Stats. 1965, Ch. 1989.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 28, 2026.
· Official source
Also known as: motion to postpone trial absent evidence californiacontinuance missing witness