© 2005 by thomson delmar learning. all rights reserved.1 california civil litigation law and motion

© 2005 by Thomson Delmar Learning. All Rights Reserved.

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CALIFORNIA CIVIL LITIGATION

LAW AND MOTION

CALIFORNIA CIVIL LITIGATION

LAW AND MOTION

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LAW AND MOTION—

motion practice to resolve disputes pending trial.

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LAW AND MOTIONLAW AND MOTION

State direct calendar system courtsand

Federal courts:

motions heard by trial judge

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LAW AND MOTIONLAW AND MOTION

State master calendar courts:

motions heard by law and motion judge

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MOTIONSMOTIONS

Administrativecontinuancepreferencespecial setting

heard by presiding judge

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MOTIONSARE A PROCESS

MOTIONSARE A PROCESS

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MOTION PROCESSMOTION PROCESS

Moving Papers (“motion”)

Opposition to Motion

Reply

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MOVING PAPERS

Notice of MotionMemorandum of Points and

AuthoritiesSupporting evidence Proposed Order

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NOTICE OF MOTION

CaptionTitle of MotionDate, Time, Department for hearingDescription of motion, Relief soughtDescription of supporting documentsSubscription

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MEMORANDUM OF POINTS AND AUTHORITIES

Caption with Date/Time/DepartmentCite law authorizing reliefRefer to supporting evidenceArgue to persuade judgeSubscription

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SUPPORTING EVIDENCE

Caption with Date/Time/DepartmentSupporting evidence

usually declarationsunder oathattached documents

authenticated

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PROPOSED ORDER

Caption with Date/Time/DepartmentRecite appearances of counselGrant relief soughtBlank for date and judge signature

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OPPOSITION PAPERS

Memorandum of Points and Authorities

Supporting evidence Proposed Order

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OPPOSITION POINTSAND AUTHORITIES

Caption with Date/Time/DepartmentCite law against motionRefer to supporting evidenceArgue to persuade judgeSubscription

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SUPPORTING EVIDENCE

Caption with Date/Time/DepartmentSupporting evidence

usually declarationsunder oathattached documents

authenticated

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PROPOSED ORDER

Caption with Date/Time/DepartmentRecite appearances of counselMotion deniedBlanks for date and judge signature

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REPLY OPTIONAL—

Memorandum of Points and Authorities to counter arguments in opposition.

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MOTION TIMING

State Court:Motion: filed/served 21–26 days before hearingOpposition: filed/served 10 days before hearingReply: filed/served 5 days before hearing

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MOTION TIMING

Federal CourtMotion: filed/served 5–8

days before hearing—but see local rules!

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TENTATIVE RULINGSTENTATIVE RULINGS

Available by telephone, online, or newspaper, a day or two before hearing

Become the order of the court unless challenged

Challenge by notifying court and parties

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COURT ORDERSCOURT ORDERS

To be effective, must be signed by the judgefiled by the clerkserved on the parties

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EX PARTE MOTIONS—EX PARTE MOTIONS—

motions made on less than usual notice(24–48 hours telephone notice);

same format as other motions, but not served in advance.

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TYPES OF MOTIONS

Some motions have special rules.

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MOTIONS TO AMENDMOTIONS TO AMEND

Must include copy of proposed amended pleading

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DEMURRERSDEMURRERS

Include: the demurrer

Hearing: must be within 35 days of

filing

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MOTIONS TO COMPEL DISCOVERY RESPONSESMOTIONS TO COMPEL DISCOVERY RESPONSES

Include: declaration on serviceandno response

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MOTIONS TO COMPEL FURTHER RESPONSESMOTIONS TO COMPEL FURTHER RESPONSES

Include: declaration on meet and confer

separate statement of discovery

responses and argument

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MOTIONS FOR PROTECTIVE ORDERSMOTIONS FOR PROTECTIVE ORDERS

Include: copy of discoveryanddeclaration of why order

sought

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SANCTIONS

Penalty against party or attorney Imposed for bad-faith tactics “Mandatory” for various discovery

violations Complex process for other types of

sanctions Usually measured by fees and costs

incurred

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SANCTIONS REQUESTS

Include grounds and amount sought in:

notice of motionpoints and authoritiesdeclaration

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MOTIONS FOR RECONSIDERATION

Same judge

Different facts

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RENEWING MOTION

Any judge

New facts

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MOTIONS FOR REHEARING

Same judge

Mistake in ruling

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SUMMARYMotion Structure, Parts,

Process

PREVIEWSummary Judgment Motions

SUMMARYMotion Structure, Parts,

Process

PREVIEWSummary Judgment Motions