Motions Flashcards
Motions (Definition/When can they be made/who can make them)
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
Parts of a Motion
1) Notice of Motion; 2) Memorandum of Points and Authorities; 3) Declarations by attorneys, clients, witnesses; 4) Proposed Order; 5) Proof of Service
Notice of Motion
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
Memorandum of Points and Authorities
Contains the legal theories upon which the motion is based (points) and cites the sources (cases, codes, etc.) of law supporting the points (authorities)
Declarations by Attorneys, Clients, Witnesses
State facts regarding actual events that make the motion necessary and are signed under penalty of perjury
Proof of Service Deadline (re: Motions)
Must be filed with the court no later than 5 calendar days before the scheduled hearing
Types of Motions
General motions/discovery motions;
Ex Parte Motions
General/Discovery Motions (Purpose/Filing Fee)
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
Motions excluded from normal motion rules
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
Papers that Must be Included in a Motion (What papers/what about other papers/how to file)
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
Motion Format: What must a motion do
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).)
Notice of Motion: Opening Paragraph
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
Info first page of each paper shall have:
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
Motion Format: References to Previously Filed Papers
Any paper previously filed shall be referred to by date of execution and title
(Cal. Rules of Court, rule 3.1110(d).)
Motion Format: Pagination
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
Motion Format: Binding
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
Motion format: Exhibits (Separation of paper exhibits/index/exhibits more than 1 page/electronic exhibit)
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
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)
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
Motions–Points and Authorities: Application to File Longer Memorandum (How to apply/application deadline/what must be stated)
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
Motions–Points and Authorities: Table of Authorities (TOA)
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.
Motions–Points and Authorities: effect of Filing an Oversized memorandum
A memorandum that exceeds the page limites of these rules must be filed and considered in the same manner as a late-filed paper
Motions–Point and Authorities: Pagination
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
Motions: Opposition to Motions (Definition/Page Limit/page counting/filing fee)
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
Motions: Reply to Opposition to Motions (Purpose/Page Limit/Fee)
Moving party has the opportunity to reply to the opposition
Limited to 10 pages
No filing fee
Motion for Summary Judgement/Motion for Summary Adjudication (Definitions/additional required papers/e-format)
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
MSJs/MSAs: Format (Page Limit/MPAs page limit/reply and closing memo page limits/exhibits that exceed page limits)
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
MSJs/MSAs: Filing (Fee/How to Hearing Date/Exhibits)
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
Motions: Copies of Non-California Authorities (Filing/Paper Format/E-format/CA cases not yet published)
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).
Motions: Attachments to Motion
To the extent practicable, all supporting memorandums, declarations, and affidavits must be attached to the notice of the motion
Motions: Exhibit references
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
Motions: request for Judicial Notice
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
Motions: Proposed Orders or Judgements
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
Motions: time for Filing POS
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).)
Ex parte motions (Definition/Purpose/Tips/Deadlines)
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)
Caption Page (What must be included)
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
Serving a Motion (deadlines/extensions)
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
Serving Opposition to motion (Deadline)
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
Serving Reply to Opposition to Motion (deadline/calculating service/overnight delivery/hand delivery)
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
Serving MSJ/MSA (deadline for service/deadline extensions)
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
Serving Opposition to MSJ/MSA (Deadline)
must be filed/served no less than 14 calendar days prior to hearing
Serving Reply to Opposition to MSJ/MSA (Service Deadline/Calculation thereof)
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))
