Motions

Question 1

What is an order?

Answer 1

“A direction of a court or judge, made or entered in writing, and not included in a judgment, is an order.” (Code Civ. Proc., § 1003.)

Question 2

What is a motion?

Answer 2

“An application for an order is a motion.” (Code Civ. Proc., § 1003.)

Question 3

What should be included in a pretrial motion in a criminal case?

Answer 3

1. Notice of motion (see Code Civ. Proc., § 1010);
2. Memorandum (Cal. Rules of Court, rule 4.111); and
3. Proof of service (Cal. Rules of Court, rule 4.111; see CCP §1013a).

Question 4

Is a proposed order required to go with a motion filing?

Answer 4

No.

However, it is good practice. There are detailed requirements for a proposed order in Local Rule 8.6 subdivision (b).

Question 5

Where are the rules for the formatting of motions?

Answer 5

Detailed rules for the format of papers presented for filing in the trial court are in Cal. Rules of Ct. 2.100–2.119.

The trial court rules in Cal. Rules of Court, rule Title 2 apply to all cases in the trial courts unless specified otherwise by statute or another rule. (Cal. Rules of Ct. 2.2 [“The Trial Court Rules apply to all cases in the superior courts unless otherwise specified by a rule or statute.”].)

Question 6

Code of Civil Procedure Section 1010 requires notice in civil cases. Does it apply in criminal cases?

Answer 6

Maybe.

It is cited by Witkin, CEB, and others, but the only criminal cases that apply it are in the context of bail forfeiture motion. Bail bond proceedings occur in connection with criminal prosecutions but are civil in nature.

Question 7

If the defense fails to give notice and you appear, what happens?

Answer 7

Notice defects are waived by an appearance and participation in the hearing without objection. This rule applies even if there was no notice at all. Instead, make a “special appearance” solely to object to the sufficiency of the notice.

Question 8

What should be included in the first page of a motion?

Answer 8

The first page of the notice of motion should give the court and cause, and the name, address, phone number, fax number, email address, and State Bar membership number of the attorney making the motion. (Cal. Rules of Court, rule 2.111 [contains specific line numbers on which this information is to appear].)

Question 9

Should the trial date be included on a motion filing?

Answer 9

Yes.

The number of the case should be to the right and opposite the title of the case. Immediately below the case number should be the title of the motion (the order being sought). (Cal. Rules of Court, rule 2.111(6).) Below the title of the motion should be the date, time, and location (if known) of the hearing on the motion; a description of any documents attached to the notice of motion (e.g., supporting memorandum, declaration); and any trial date.

Question 10

What if you break the rules on motion formatting?

Answer 10

On a showing of good cause, the court can permit the filing of papers that do not comply with Cal. Rules of Court, rule 2.100–2.119. (Cal. Rules of Court, rule 2.118(c).)

Question 11

When should someone bring a motion?

Answer 11

Any pretrial motion that is not subject to a specific deadline should be brought as soon as practicable after counsel discovers the grounds for the motion, and if possible, should be set for hearing far enough in advance of trial to permit the matter to be resolved without any disruption to the trial schedule. (See, e.g., People v. Windham (1977) 19 Cal.3d 121, 128 n5 (Faretta motion is pretrial motion and should be brought within reasonable time before trial); People v. Nicholson (1994) 24 Cal.App.4th 584, 591 [same].)

Question 12

Who sets a motion for hearing?

Answer 12

“The moving party must set the motion for hearing.” (Cal. Crim. Proc. & Practice (2023) § 18.6.)

Question 13

What is the timeline for filing written pretrial motions?

Answer 13

File the motion 10 court days before the hearing

Question 14

What should an attorney do if they need a hearing in less than 10 days?

Answer 14

You should apply for an order shortening time.

Question 15

What do the local rules require in an order shortening time?

Answer 15

It must set forth:
1. good cause,
2. facts concerning notice to opposing counsel; and
3. the position of opposing counsel and co-counsel.
(L.A. Sup. Ct. Local Rule 8.6 subd. (a).)

Question 16

Are the motion timelines in Cal. Rules of Court, rule 4.111 hard and fast?

Answer 16

No.

Unless otherwise provided by law, the court may extend or shorten the time within which a party must file motion papers (Cal. Rules of Court, rule 1.10(c)) [“Unless otherwise provided by law, the court may extend or shorten the time within which a party must perform any act under the rules”].)

Question 17

Does a written motion have to have a supporting memorandum?

Answer 17

Yes.

All pretrial motions must be accompanied by a supporting memorandum. Failure to file the memorandum can be considered an admission that the motion is without merit. (Cal. Rules of Court, rule 4.111(b).)

Question 18

When are tables of contents and authorities required?

Answer 18

Although Cal. Rules of Court, rule 3.1113(f) requires counsel in civil cases to include a table of contents and table of authorities if the memorandum exceeds 10 pages, and an opening summary of argument if it exceeds 15 pages, this portion of Rule 3.1113 is not commonly followed in criminal cases.

Question 19

What kind of factual showing is required in a motion?

Answer 19

The motion must allege the specific facts that, if proved, would entitle the moving party to the relief sought.

Question 20

How is a factual showing made in a motion.

Answer 20

Facts are alleged by declarations or affidavits, exhibits, or reference to documents in the court’s file, not by putting a statement of facts in the supporting memorandum. Declarations (see Code Civ. Proc., § 2015.5) and affidavits (see Id. at § 2003) are interchangeable (see Id. at § 2015.3) and are used to state the facts the motion is based on (see Evid. Code, §§ 135, 225), to fill factual gaps in the record, and as a substitute for sworn oral testimony (see Code Civ. Proc., § 2002).

Question 21

Can a factual showing be made by putting facts in the memorandum?

Answer 21

No.

Question 22

Can a declarant who provided evidence in support of a motion be cross-examined?

Answer 22

Yes.

The declarant or affiant can be cross-examined on request by the opponent at the hearing on the motion. (People v. Williams (1973) 30 Cal.App.3d 502, 509; People v. Estrada (2003) 105 Cal.App.4th 783, 792.)

Question 23

Can a declaration include inadmissible evidence?

Answer 23

No.

Ordinarily, the documents providing evidentiary support for a motion should show that the facts alleged can be proved by admissible evidence. Thus, declarations should usually be based on the declarant’s personal knowledge. There are exceptions, however. For example, a Pitchess motion can be based on a declaration of counsel sworn on “information and belief,” i.e., hearsay (see Evid. Code § 1043(b)(3)).)

Question 24

When should pretrial motions be heard.

Answer 24

Except for good cause, pretrial motions in criminal cases should be heard and decided before or at the readiness conference. (Cal. Rules of Court, rule 4.112(b).)

Question 25

May documents be filed by fax?

Answer 25

Yes.

Facsimile filing and service is governed by California Rules of Court, rules 2.301 through 2.306.

Question 26

What documents may be filed by fax?

Answer 26

1. Motions to Continue
2. Motions for Bail Review
3. Penal Code section 995 Motions;
4. Motions to Compel Discovery,
5. Motions to Suppress Evidence under Penal Code section 1538.5; and
6. Sentencing memoranda.
   (L.A. Sup. Ct. Local Rule 8.9.)

Question 27

Is there a length limit for fax filings?

Answer 27

Yes.

Fax filings must be shorter than 10 pages. (L.A. Sup. Ct. Local Rule 8.9.)

Question 28

Can counsel resubmit a motion previously acted upon?

Answer 28

Yes.

Resubmission is governed by Local Rule 8.6 subd. (d).

Question 29

Are there special requirements for resubmitting motions previously acted upon?

Answer 29

Yes.

Such a motion must be resubmitted to the same judge. If resubmitted to a different judge, the moving party must file and serve a declaration setting forth the material facts and circumstances as to each prior motion or application, including the date and judge involved in the prior motion, the ruling, decision or order made, the new or different facts or circumstances claimed to warrant relief, and the reason facts or circumstances were not presented to the judge who earlier ruled on the motion.