Motions

Question 1

Motions (Definition/When can they be made/who can make them)

Answer 1

Procedures by which a party makes application to the court for an order on a particular issue

A motion can be made at any time during the action

Any party can make a motion

Question 2

Parts of a Motion

Answer 2

1) Notice of Motion; 2) Memorandum of Points and Authorities; 3) Declarations by attorneys, clients, witnesses; 4) Proposed Order; 5) Proof of Service

Question 3

Notice of Motion

Answer 3

Informs party to whom it is directed as to what kind of order the moving party is requesting, when and where the hearing will be held, and on what grounds the motion is based

Question 4

Memorandum of Points and Authorities

Answer 4

Contains the legal theories upon which the motion is based (points) and cites the sources (cases, codes, etc.) of law supporting the points (authorities)

Question 5

Declarations by Attorneys, Clients, Witnesses

Answer 5

State facts regarding actual events that make the motion necessary and are signed under penalty of perjury

Question 6

Proof of Service Deadline (re: Motions)

Answer 6

Must be filed with the court no later than 5 calendar days before the scheduled hearing

Question 7

Types of Motions

Answer 7

General motions/discovery motions;
Ex Parte Motions

Question 8

General/Discovery Motions (Purpose/Filing Fee)

Answer 8

General motions/discovery motions

During the course of the case, a party might need to file for relief from the court to:

Do something (motion to set aside default)

Not to do something (motion for protective order)

Or make opposing party do/not do something (motion to compel)

Check with court to determine amount of filing fee

Question 9

Motions excluded from normal motion rules

Answer 9

Be sure to check the timetable re: motions that are excluded from the general motion rules

Motion for new trial
Motion to vacate judgement
Motion for summary judgement
Motion to dismiss complaint

Question 10

Papers that Must be Included in a Motion (What papers/what about other papers/how to file)

Answer 10

Papers filed in support of a motion must consist of the following: 1) a notice of hearing on the motion; 2) motion itself; 3) memorandum in support of the motion (Cal. Rules of Court, rule 3.1112(a).)

Other paper may be filed in support of a motion, they include declaration, exhibits, appendices, and other docs or pleadings (Cal. Rules of Court, rule 3.1112(b).)

These papers may either be filed as separate documents or combined in one or more documents if the party filing a combined pleading specifies these items separately in the caption of the combined pleading

Question 11

Motion Format: What must a motion do

Answer 11

A motion must:

1)Identify the party or parties bringing the motion;

2) name the parties to whom it is addressed;

3) briefly state the basis for the motion and the relief sought;

4)if a pleading is challenged, state the specific portion challenged (Cal. Rules of Court, rule 3.1112(d).)

Question 12

Notice of Motion: Opening Paragraph

Answer 12

A notice of motion shall state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order

Question 13

Info first page of each paper shall have:

Answer 13

The first page of each paper shall specify immediately below the number of the case:

1) the date, time, and location, if ascertainable, of any scheduled hearing and the name of the hearing judge, if ascertainable

2) the nature/title of any attached document other than an exhibit

3) the date of filing of the action

4) trial date, if set

Question 14

Motion Format: References to Previously Filed Papers

Answer 14

Any paper previously filed shall be referred to by date of execution and title

(Cal. Rules of Court, rule 3.1110(d).)

Question 15

Motion Format: Pagination

Answer 15

Documents must be consecutively paginated.

The page numbering must begin with the first page and use only Arabic numerals (e.g., 1, 2, 3).

The page number may be suppressed and need not appear on the first page

Question 16

Motion Format: Binding

Answer 16

For motions filed on paper, all pages of each document and exhibit must be attached together at the top by a method that permits pages to easily turned and the entire content of of each page to be read

Question 17

Motion format: Exhibits (Separation of paper exhibits/index/exhibits more than 1 page/electronic exhibit)

Answer 17

Exhibits must be separated by a hard 8-1/2 x 11 inch sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation (e.g., EXHIBIT A)

An index to exhibits must be provided

Exhibits more than one page must be designated as a single exhibit

Electronic exhibits must meet the requirements in rule 2.256(b)

Electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number/letter and briefly describe the exhibit

Question 18

Motions–Points and Authorities: Page Limitations (Page limit/memos that exceed limit/how to count pages/limits for replies and closing memorandum page limit/summary judgement and summary adjudication page limits/where to begin text of the brief)

Answer 18

Except in summary judgement or summary adjudication motions, no opening or responding memorandum may exceed 15 pages

If more than 10 pages, must include a Table of Contents (“TOC”) and Table of Authorities (“TOA”)

A memorandum that exceeds 15 pages must also include an opening summary argument

When counting pages, do not include the Notice of Motion and Motion, exhibits, declarations,TOA,TOC, and POS

No reply or closing memorandum may exceed 10 pages

In a summary judgement or summary adjudication motion, no opening or responding memorandum may exceed 20 pages

It is best practice to never start any text of the brief on the caption page

Question 19

Motions–Points and Authorities: Application to File Longer Memorandum (How to apply/application deadline/what must be stated)

Answer 19

A party may apply to the court ex parte but with written notice of the application to the other parties, at least 24 hours before the memorandum is due, for permission to file a longer memorandum

Application must state reasons why the argument cannot be made within the stated limit

Question 20

Motions–Points and Authorities: Table of Authorities (TOA)

Answer 20

A table of authorities is part of a legal brief that
contains an index of the cases, statutes, and
secondary sources cited

The TOA list has the name of the authority followed by the page number or numbers on which each authority appears, and the authorities are commonly listed in alphabetical order within each grouping.

Question 21

Motions–Points and Authorities: effect of Filing an Oversized memorandum

Answer 21

A memorandum that exceeds the page limites of these rules must be filed and considered in the same manner as a late-filed paper

Question 22

Motions–Point and Authorities: Pagination

Answer 22

The pages of a memorandum must be numbered consecutively beginning with the first page and using only Arabic numerals

Page number may be suppressed and need not appear on the first page

Question 23

Motions: Opposition to Motions (Definition/Page Limit/page counting/filing fee)

Answer 23

Responding party has the right to formally oppose the contents of the motion

Limited to 15 pages

If more than 10 pages, must include a TOC and TOA

When counting pages, do not include the caption page,TOA,TOC, and POS

No filing fee

Unless you have not appeared in the case yet

Question 24

Motions: Reply to Opposition to Motions (Purpose/Page Limit/Fee)

Answer 24

Moving party has the opportunity to reply to the opposition

Limited to 10 pages

No filing fee

Question 25

Motion for Summary Judgement/Motion for Summary Adjudication (Definitions/additional required papers/e-format)

Answer 25

MSJ: Seeks to resolve entire matter

MSA: Seeks to resolve individual causes of actions and/or issues

Document may be titled: Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Requires separate statement setting forth all material facts which moving party contends are undisputed and the
supporting evidence to same

Upon request, a party has 3 days to provide the other party an electronic version of its separate statement

Question 26

MSJs/MSAs: Format (Page Limit/MPAs page limit/reply and closing memo page limits/exhibits that exceed page limits)

Answer 26

No opening or responding (opposition) memorandum may exceed 20 pages

MPAs that exceed 10 pages must include a table of contents and a table of authorities

No reply or closing memorandum may exceed 10 pages

If exhibits exceed 25 pages, must be separately bound and include a TOC

Question 27

MSJs/MSAs: Filing (Fee/How to Hearing Date/Exhibits)

Answer 27

Check with court for amount of filing fee (usually $500 if you have already paid first appearance fees)

Some courts will reserve date by phone; others online; and some will assign hearing date when papers are filed

Don’t forget to attach exhibits

Question 28

Motions: Copies of Non-California Authorities (Filing/Paper Format/E-format/CA cases not yet published)

Answer 28

If citing an authority outside of CA, judge may require the authority to be lodged with the papers that cite the authority

If in paper form, authority must be tabbed or separated as required by rule 110(f)(3).

If in electronic format the authority must be electronically bookmarked as required by rule 3.1110(f)(4)

If a CA case is cited before the time it is published in the advance sheets of the official reports, a copy of the case must also be lodged and tabbed as required by CA rules of court, rule 3.1110(f).

Question 29

Motions: Attachments to Motion

Answer 29

To the extent practicable, all supporting memorandums, declarations, and affidavits must be attached to the notice of the motion

Question 30

Motions: Exhibit references

Answer 30

All references to exhibits or declaration in supporting or opposing papers must reference the number or letter of the exhibit, the specific page, and, if applicable, the paragraph or line number

Question 31

Motions: request for Judicial Notice

Answer 31

Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with CA Rules of Court

Question 32

Motions: Proposed Orders or Judgements

Answer 32

If a proposed order or judgement is submitted, it must be lodged and served with the moving papers but must not be attached to the moving papers

Question 33

Motions: time for Filing POS

Answer 33

Proof of service of the moving papers shall be filed no later than five court days before the time appointed for the hearing. (Cal. Rules of Court, Rule 3.1300(c).)

Question 34

Ex parte motions (Definition/Purpose/Tips/Deadlines)

Answer 34

Made by one party for a court order

Used where the matter does not require a hearing, or time is of the essence and proper service cannot be made

Check with court as to days/time heard

Notice must be given to all parties by 10 a.m. the business day preceding the hearing

Copies of the docs must be served on all parties at first reasonable opportunity n(sometimes this is at the hearing itself)

Question 35

Caption Page (What must be included)

Answer 35

First page of each document must have below the case number:

Title of document\
date, time, and place of hearing (department number)
Name of judge hearing the motion (if known)
Date the initial complaint was filed
Trial Date, if set

Question 36

Serving a Motion (deadlines/extensions)

Answer 36

Must serve all papers at least 16 court days before hearing date

Code of Civil Procedure section 1005(b)

by Mail: Increase notice by 5 calendar days

by e-service: increase notice by 2 calendar days

by Overnight Mail: Increase notice by 2 calendar days

Question 37

Serving Opposition to motion (Deadline)

Answer 37

Must be filed/served at least 9 court days prior to hearing

Service must be reasonably calculated to ensure delivery to the other party or parties no later than the close of the next business day after the time the opposing papers are filed

Could serve via overnight mail the day of filing

Could hand deliver the next business day after the date of filing

Question 38

Serving Reply to Opposition to Motion (deadline/calculating service/overnight delivery/hand delivery)

Answer 38

must be filed and served at least 5 court days prior to hearing

Service must be reasonably calculated to ensure delivery to the other party or parties no later than the close of the next business day after the time the reply papers are filed

Could serve via overnight mail the day of filing

Could hand deliver the next business day after the date of filing

Question 39

Serving MSJ/MSA (deadline for service/deadline extensions)

Answer 39

Must serve all papers at least 75 calendar days before the hearing date

Code of Civil Procedure section 437c

If served by mail – increase notice by 5 calendar days (if address is in California)

If served by electronic service, fax, or overnight delivery – increase notice by 2 court days

***Note the difference between regular motions and MSJs and the use of calendar and court

Question 40

Serving Opposition to MSJ/MSA (Deadline)

Answer 40

must be filed/served no less than 14 calendar days prior to hearing

Question 41

Serving Reply to Opposition to MSJ/MSA (Service Deadline/Calculation thereof)

Answer 41

must be filed/served no less than 5 calendar days prior to hearing

Service must be reasonably calculated to ensure delivery to the other party or parties no later than the close of the next business day after the time the reply papers are filed (CCP 1005(c))