12 Noticed MotionsI.INTRODUCTIONA.Scope of
Chapter12.1B.Governing Law1.Statutes12.22.California Rules of
Court12.33.Applicability of Local Court Rules and
Policies12.4C.Tactical Objectives12.5D.Consultation With
Client12.6II.TIME FOR MAKING MOTIONA.Timing
Considerations12.71.Statutory and Rule Restrictions on Timing of
Motions12.82.Calculating Effect of Service on Timing of
Motion12.93.Effect of Service by Methods Other Than Personal
Delivery12.10B.Shortening Time12.111.By Stipulation12.122.By
Application for Order Shortening Time12.13C.Extending Time12.141.By
Stipulation12.152.By Motion12.16III.NOTICE OF MOTION AND
MOTIONA.Motion Defined12.17B.Necessary Papers12.18C.Notice of
Motion and Motion12.191.Physical Formattinga.Paper, Print, Spacing,
and Margins12.20b.Binding12.21c.Footer12.222.Information Required
in Captiona.Attorney Information12.23b.Title of
Court12.24c.Telephone Appearance12.25d.Title of Case12.26e.Nature
of Paper12.27f.Date, Time, Location of Hearing12.28(1)Date and
Time12.29(2)Location12.30g.Name of Hearing
Judge12.31h.Attachments12.323.Body of Notice of Motion and
Motion12.33a.Introductory Line12.34b.Nature of Order
Sought12.35c.Grounds for Issuance of Order12.36(1)Effect of Failure
to State Grounds12.37(2)Courts Consideration of Grounds Not Stated
in Motion12.384.Identification of Papers Supporting the
Motion12.39a.Reference to Papers Previously Filed With
Court12.40b.Papers Not Previously Served on Adverse
Party12.415.Date; Signature12.42D.Checklist: Procedures for Motions
and Hearings12.43IV.SUPPORTING DOCUMENTSA.Memorandum in Support of
Motion1.When Supporting Memorandum Required12.442.Motions,
Applications, and Petitions Not Requiring Memorandum12.453.Format
of Supporting Memoranduma.Contents of Supporting
Memorandum12.46b.Format and Style12.47c.Length of Supporting
Memorandum12.48d.Table of Contents; Table of
Authorities12.494.Organization of Supporting
Memorandum12.50a.Introductory Statement;
Introduction12.51b.Argument(1)Summary of Argument12.52(2)Concise
and Persuasive Argument12.53(3)Applicable Statutes and
Cases12.54(a)Improper Use of Repealed or Overruled Legal
Authority12.55(b)Using Authority From Jurisdictions Outside
California12.565.Conclusion12.576.Signature12.58B.Declarations1.Declaration
Compared With Affidavit12.592.Declaration as Substitute for Oral
Testimony12.603.Selecting Declaranta.Tactical
Considerations12.61b.Attorney as Declarant12.624.Format of
Declarationa.Caption12.63b.Identity of Declarant12.64c.Competence
of Declarant12.65(1)Declarations Made On Information and
Belief12.66(2)Expert Declarations12.675.Admissibility of Matters
Stated12.68a.Statements of Opinion12.69b.Hearsay
Statements12.706.Subscription12.71a.Declaration Under Penalty of
Perjury12.72(1)Writing Requirement12.73(2)Date of
Execution12.74b.Affidavit12.75C.Pleadings and Papers on
File12.76D.Documentary Evidence in Support of Motion12.77E.Attached
Exhibits12.781.Materials Lodged With Clerk12.792.Use of
Copies12.80F.Requests for Judicial Notice12.81V.SERVICE AND
FILINGA.Proof of Service12.821.Whom to Serve12.832.Service by
Mail12.843.Service by Personal Delivery12.854.Service by Fax or
Electronically12.86B.Filing Papers With Court12.87C.Service on
Public Officer or Agency1.Service on Attorney General12.882.Proof
of Service12.893.Identification on Cover12.90VI.OPPOSING
MOTIONA.Tactical Considerations1.Initial Evaluation of
Motion12.91a.Cost-Benefit Analysis12.92b.Factors to Be
Evaluated12.932.Consulting With Client12.943.Leaving Motion
Unopposed12.954.Resolving Motions by Stipulation or
Compromise12.96B.Grounds for Opposing Motion1.Noncompliance With
Procedural Requirements12.972.Evidentiary Matters Inadmissible or
Declarant Incompetent12.983.Facts or Law Insufficient to Support
Motion12.99C.Preparing Opposition Papers1.Memorandum in Opposition
to Motion12.100a.Organization of Opposition
Memorandum12.101b.Length Restrictions on Opposition
Memorandum12.1022.Declarations Opposing Motion12.1033.Other
Evidentiary Material12.104D.Opposition Procedure1.Check for
Additional Filing Requirements12.1052.Time for Filing Opposition
Papers12.1063.Serving and Filing Opposition Papers12.1074.Moving
for Continuance12.108E.Checklist: Procedure for Responding to
Noticed Motion12.109VII.REPLYA.Replying to Opposition
Papers12.110B.Responding to Reply
Papers12.111VIII.HEARINGA.Attendance12.112B.Tentative
Rulings12.112AC.Telephone Appearances1.When Telephone Appearance Is
Appropriate12.113a.Procedure for Appearing by
Telephone12.114b.Matters in Which Personal Appearance Is
Required12.115c.Ex Parte Proceedings12.115A2.Notice of Intent to
Appear by Telephonea.Notice Requirements for Proceeding Other than
Ex Parte Application12.116b.Notice Requirements for Ex Parte
Application12.116A3.Personal Appearance After Notice to Appear by
Telephone12.1174.Teleconferencing12.118D.Oral Argument1.Purpose of
Oral Argument12.1192.Presentation of Argument12.1203.Answering
Judges Questions12.121E.Presenting Evidence12.122F.Arranging for
Court Reporter12.123IX.RULINGS AND ORDERSA.Rulings and Orders
Defined12.124B.Courts Ruling on Noticed Motion12.125C.Order After
Hearing1.Preparation of Order12.1262.Reason to Submit Proposed
Order12.1273.Contents of Proposed
Order12.1284.Findings12.129D.Notice of Ruling12.130E.Procedures
After Motion Granted1.Moving Party12.1312.Opposing
Party12.132F.Procedures After Motion Denied1.Motion for
Reconsideration12.133a.Effect of Motion on Timing to File
Appeal12.134b.Subsequent Motion for Same Order12.135c.Jurisdiction
to Hear Motion12.136d.Denial of
Motion12.137e.Sanctions12.138f.Appeal12.1392.Courts Inherent Power
to Reconsider12.140G.Motion for Relief Under CCP 473 (Mistake,
Inadvertence, Surprise, Neglect)12.141X.SANCTIONSA.Availability of
Sanctions12.1421.When Sanctions Are Not Available12.1432.Discovery
Motions12.144B.Moving for Sanctions Under CCP 128.71.Motion Must Be
Made Separately12.1452.Safe Harbor Provisions12.146XI.SEALING OF
COURT RECORDSA.Standards and Procedures Generally12.1471.Applicable
Rules of Court12.1482.Definitions12.1493.Court Records Presumed to
Be Open12.150B.Procedures for Filing Records Under Seal1.Court
Approval Required12.1512.Motion or Application to Seal a
Recorda.Motion or Application12.152b.Express Factual Findings
Required to Seal Records12.153(1)Facts Establishing Overriding
Interests12.154(2)Facts Failing to Establish Overriding
Interests12.155c.Service12.1563.Lodging of Records12.1574.Trial
Records Subject to Confidentiality Agreement or Protective
Order12.1585.Sealing Ordera.Content and Scope of
Order12.159b.Procedure on Grant or Denial of Order12.160C.Custody
of Sealed Records12.161D.Custody of Voluminous Public Agency
Records12.162E.Motion, Application, or Petition to Unseal
Records12.1631.Who May Move to Unseal Records12.1642.Documents
Supporting and Opposing Motion12.1653.Court Order Unsealing
Records12.166F.Request for Delayed Public Disclosure12.167G.In
Camera Confidential Proceedings1.Minutes of
Proceedings12.1682.Disposition of Examined
Records12.169XII.FORMSA.Moving Partys Forms1.Form: Notice of
Motion12.1702.Form: Memorandum in Support of Motion12.1713.Form:
Declaration Supporting Motion12.1724.Form: Request for Judicial
Notice12.1735.Form: Application for Order Shortening Time;
Order12.1746.Form: Proposed Order Shortening Time12.1757.Form:
Stipulation Extending Time12.176B.Opposing Partys Forms1.Form:
Memorandum in Opposition to Motion12.1772.Form: Declaration
Opposing Motion12.178C.Notice of Ruling and Orders1.Form: Notice of
Ruling on Motion12.1792.Form: Proposed Order12.1803.Form:
Application for Order Extending Time12.1814.Form: Proposed Order
Extending Time12.1825.Form: Order12.183I. INTRODUCTION 12.1 A.Scope
of ChapterThis chapter covers general aspects of the noticed motion
procedure. Specific format and timing requirements applicable to
particular motions are noted in the other chapters of this book
that discuss those motions. This chapter discusses tactical
objectives and client consultation (see 12.512.6), the notice of
motion (see 12.1712.43), supporting documents (see 12.4412.81),
time for making the motion and shortening and extension of time
(see 12.712.16), service and filing (see 12.8212.90), opposing the
motion (see 12.9112.109), the reply (see 12.11012.111), hearings
(see 12.11212.122), rulings and orders (see 12.12412.141),
sanctions (see 12.14212.146), sealing of court records (see
12.14712.169), and forms (see 12.17012.183).Chapter 13 discusses ex
parte applications for orders. Summary judgment motions are
discussed in chap 36. Motions to disqualify a judge under CCP 170.6
are discussed in California Trial Practice: Civil Procedure During
Trial (3d ed Cal CEB). Motions regarding discovery are discussed in
California Civil Discovery Practice (4th ed Cal CEB).B. Governing
Law12.21.StatutesMotions, notices of motion, and orders in general
are governed by CCP 10031020: Definitions (CCP 1003). Court in
which motion should be made (CCP 166 and 1004). Motions requiring
written notice; time periods for making or opposing written motions
(CCP 1005). When motion deemed made (CCP 1005.5). Transfer to
another judge (CCP 1006). Appearance of counsel by telephone (CCP
367.5). Motions to reconsider (CCP 1008). Content of the notice of
motion (CCP 1010). Filing and service (CCP 10111020). Rules
governing filing by fax (CCP 1010.5). Rules regarding electronic
filing and service (CCP 1010.6, 1013(g)). Method and place of
service (CCP 1011). Service by mail (CCP 10121013a). Appearance by
answer, demurrer, or written notice (CCP 1014). Service on party
without attorney or on nonresident appearing by attorney (CCP
1015). Provisions not applicable to service of summons (CCP 1016).
Service by telegraph (CCP 1017). Print size of notice or
publications (CCP 1019). Service of notice of courts decision (CCP
1019.5). Service of notice by registered mail (CCP 1020). A number
of additional sections of the California Code of Civil Procedure
deal with specific types of motions. For example, discovery motions
are governed by several specific procedures and requirementsset out
in CCP 2016.0102036.050. 12.32.California Rules of CourtThe Civil
Law and Motion Rules are set forth in Cal Rules of Ct 3.11003.1312.
They comprise a comprehensive set of rules that apply to all civil
law and motion proceedings. Cal Rules of Ct 3.1100. The rules cover
the following: Format and filing of papers (Cal Rules of Ct
3.11003.1302). General format (Cal Rules of Ct 3.1110). Motions and
other pleadings (Cal Rules of Ct 2.111(4)(6), 3.11123.1113,
3.1324). Memorandum in support of motion (Cal Rules of Ct 3.1113).
Miscellaneous papers (Cal Rules of Ct 3.1115). Deposition testimony
(Cal Rules of Ct 3.1116). Time for filing and service of motion
(Cal Rules of Ct 3.1300). Place and manner of filing (Cal Rules of
Ct 3.1302). Hearings (Cal Rules of Ct 3.13043.1310). Time of
hearing (Cal Rules of Ct 3.1394). Oral testimony and judicial
notice (Cal Rules of Ct 3.1306). Tentative ruling procedures (Cal
Rules of Ct 3.1308). Reporting of proceedings (Cal Rules of Ct
3.1310). Particular motions (Cal Rules of Ct 3.13203.1384).
Miscellaneous provisions (Cal Rules of Ct 3.12003.1207,
3.13003.1312). Rules adopted by the Judicial Council cannot be
inconsistent with statute. Cal Const art VI, 6. To comply with the
requirement of consistency, a rule of court may not conflict with
the intent of a statute.People v Hall(1994) 8 C4th 950;
Trans-Action Commercial Investors, Ltd. v Firmaterr, Inc. (1997) 60
CA4th 352. See also California Court Reporters Assn v Judicial
Council(1997) 59 CA4th 959.12.43.Applicability of Local Court Rules
and PoliciesThe Judicial Council has adopted Cal Rules of Ct 3.20,
which preempts local court rules relating to pleadings, demurrers,
ex parte applications, motions, discovery, provisional remedies,
and the form and format of papers. Cal Rules of Ct 3.20(a). It does
not, however, apply to certain proceedings, suchas those in family
law, probate, or criminal proceedings, and it does not preempt
local rules adopted under the Trial Court Delay Reduction Act (Govt
C 6860068620). Cal Rules of Ct 3.20(b). See also Volkswagen v
Superior Court(2001) 94 CA4th 695, 703 (local rules that manage
complex litigation arenot preempted). On preemption of local rules
generally, see 11.2.PRACTICE TIP:Because trial courts still have
authority to make rules in areas that potentially affect motion
practice (e.g., management of fast-track cases), counsel should
continue to check local rules before filing a motion. See, e.g.,
Los Angeles Ct R 3.26, App 3.A(h) (counsel should attempt to
resolve issue with opponent before filing motion). In addition,
some courts also have policy or procedure manuals on motions and
particular kinds of proceedings, and occasionally individual judges
or departments issue policy statements. But see Lokeijak v City of
Irvine(1998) 65 CA4th 341 (trial courts guideline on summary
judgment motions invalidated; guideline was actually rule that
conflicted with CCP 437c).Local rules can be found on the courts
website. For a listing of local rules websites, see
http://www.courts.ca.gov/3027.htm.12.5C.Tactical ObjectivesMotions
are tactical tools, and the attorneys decision to seek an order
should be made in the context of the partys overall litigation
plan. Making a motion entails time, effort, and expense for the
moving party.An attorney deciding whether to make a motion, or what
motion to make, may engage in a cost-benefit analysis: Does the
anticipated benefit (after being discounted for the possibility of
losing the motion and the disadvantage of educating the adversary)
outweigh the expense (in time and money) of making the motion? How
does that differential compare with those produced by a similar
analysis of alternatives to the motion?Factors to be evaluated
include the following: The significance of a successful motion to
the ultimate outcome of the case. The likelihood of success. The
danger of alerting the adversary to issues that may not have
surfaced until later. PRACTICE TIP:There may be an advantage to
taking a deposition before making a motion. In some cases, an early
motion may save the moving party effort and expense. In others, it
is better to delay filing a motion until after investigation and
discovery or after an adversary is committed to a position. Some
motions can be postponed until it is too late for the adverse party
to correct the defect that the motion exposes. The favorable and
permitted time to make the motion. PRACTICE TIP:Delay may create
the risk that adversaries will oppose the motion on grounds of
laches (see Benjamin v Dalmo Mfg. Co. (1948) 31 C2d 523, 531;
Corcoran v City of Los Angeles(1957) 153 CA2d 852, 856), or that
the judge who rules on the motion will see the delay as intended to
gain an advantage or create an inequity. The degree to which the
motion will help or interfere with settlement possibilities. The
cost of making the motion, in terms of money, effort, time, and
continued amicability among counsel. Less costly measures that
might achieve an acceptable result. PRACTICE TIP:The objective
might be achieved by simply discussing the matter with, and
obtaining the agreement of, opposing counsel. Many local court
rules require the parties to meet and confer to try to resolve
disputes before making a motion. See, e.g., Cal Rules of Ct 3.724;
Los Angeles Ct R 3.25(b)(1). The overall effect of the motion on
the judges view of the case. 12.6D.Consultation With ClientIt is
usually good practice, and often good protection for counsel, to
discuss with the client the possibility of making a motion. Some
factors to be evaluated in deciding whether to make a motion or
what motion to make involve matters that are not strictly legal
evaluations and about which the client may have strong feelings,
e.g., the costs involved. In any event, the client who is involved
in the litigation decision-making process is more likely to feel
well represented. II.TIME FOR MAKING MOTION 12.7A.Timing
ConsiderationsThere are two timing factors to consider before
making any motion: (1) as a procedural matter, when the motion can
be made (including when papers can be served and when the hearing
can take place); and (2) as a tactical matter, when the motion
should be made. The first factor is discussed in 12.812.10. The
second factor must be evaluated in the context of the tactical
objectives of the entire lawsuit (see 12.5).12.81.Statutory and
Rule Restrictions on Timing of MotionsSeveral restrictions affect
the choice of the date to serve and to file motion papers and the
date to noticefor the motion hearing. The statute or rule that
provides for a particular order may set a deadline. Examples
include the following: A demurrer must be served and filed within
30 days after service of the summons and complaint. CCP 430.40(a).
A notice of motion to compel further answers to interrogatories
must be served within 45 days after service of the verified
response to the interrogatories (unless extended by the parties by
written agreement). CCP 2030.300(c). Motions for reconsideration or
to amend an order based on new facts must be made within 10 days
after service of written notice of entry of the order. CCP 1008(a).
Under CCP 2024.020(a), discovery motions must be heard at least 15
days before the date initially set for trial. For discussion of
discovery motions, see California Civil Discovery Practice (4th ed
Cal CEB); Handling Motions to Compel and Other Discovery Motions
(Cal CEB Action Guide). If the moving papers are served or filed
after the appropriate deadline, the court can deny the motion as
untimely and an appellate court can overturn an order granting the
motion.Conversely, some motions are untimely if made too early.
Examples include the following: A notice of motion for summary
judgment can be made no sooner than 60 days after the adversepartys
appearance in the action (see CCP 437c(a); see chap 36). A motion
to dismiss can be made no earlier than 2 years after the complaint
was filed (see, e.g., CCP 483.410(b), 583.420(a)(2)(B); Cal Rules
of Ct 3.1340; see chap 39). Motions to strike and demurrers
directed to the same pleading should be noticed for hearing
simultaneously. Cal Rules of Ct 3.1322. Regarding demurrers, see
chap 23; regarding motions to strike, see chap 24.
12.92.Calculating Effect of Service on Timing of MotionCounsel must
also determine how long before the hearing on a motion the notice
of motion must be served and filed. Written notice of hearing must
be personally served at least 16 court days before the appointed
time for the hearing, unless a judge has granted an order
shortening time. CCP 1005(b); CalRules of Ct 3.1300(a). On timing
for methods other than personal service, see 12.10. For some
motions, a different period may be required. See, e.g., chap 36 on
summary judgment motions.WARNING:Setting a hearing too many days in
the future could constitute improper delay. See CCP 128.7(b)(1).
See 12.5.PRACTICE TIP:Although the adoption of Cal Rules of Ct 3.20
limits the local courts authority to makerules concerning motions,
local rules that are within the rule-making authority of the trial
courts may still affect motion practice. Thus, counsel should
consult local rules or the court clerk about the appropriate
department for a motion hearing as well as times and dates on which
the court hears motions. See, e.g., Los Angeles Ct R 3.4(a), 3.5
(time of hearing and filing of papers). 12.103.Effect of Service by
Methods Other Than Personal DeliveryMoving and supporting papers,
including a written notice of motion, must be filed and served at
least 16 court days before the hearing, if service is by personal
delivery. CCP 1005(b). Section 1005(b) prescribes increases in the
period of notice when service is by methods other than personal
delivery in lieu of the time extension provisions of CCP 1013,
which do not apply to a notice of motion, opposition papers, or
reply papers. CCP 1005(b).If service is by mail, the 16-court-day
notice period is increased by (CCP 1005(b)) 5 calendar days if the
place of mailing and the place of address are in California; 10
calendar days if either place of mailing or the place of address is
outside California but in theUnited States; and 20 calendar days if
either the place of mailing or the place of address is outside the
United States. If service is by fax, the notice period is increased
by 2 calendar days. CCP 1005(b). On fax service generally, see CCP
1013(e)(f); Cal Rules of Ct 2.3002.306; 18.1618.22.If service is by
express mail or some other method of overnight delivery, the notice
period is increased by 2 calendar days. CCP 1005(b). On service by
mail or overnight delivery, see 18.818.12.If service is electronic,
the notice period is increased by 2 court days. CCP 1010.6(a)(4);
Cal Rules of Ct 2.251(f)(2). On electronic service, see CCP 1010.6,
1013(g); Cal Rules of Ct 2.2502.259; 18.2318.40.PRACTICE TIP:For
electronic service, CCP 1010.6(a)(4) extends any period of notice
or any time for exercising any right or performing any duty to do
an act or make a response by 2 court days, unless a statute or
court rule provides otherwise. Although CCP 1005(b) expressly
states that the provisions of CCP 1013 extending the time within
which a right may be exercised or an act may be done do not apply
to a notice of motion, opposition papers, or reply papers (and
provides its own extension periods for service by mail, fax,
express mail, and overnight delivery), it does not mention CCP
1010.6 or electronic service. The safest course would seem to be to
add the 2-court-day extension of CCP 1010.6(a)(4) to the
16-court-day minimum notice period prescribed by CCP
1005(b).12.11B.Shortening TimeTo obtain a hearing date on a motion
that is sooner than would otherwise be possible under normal
procedures (see 12.712.10), a stipulation must be obtained from the
opposing party (see 12.12) or an order shortening time must be
obtained from the court (see 12.13).12.121.By StipulationThe
parties may agree to shorten the time necessary for a notice for
the hearing of a motion. Any stipulation should be in
writing.Before seeking or obtaining a stipulation, however, counsel
should contact should the court clerk in the courtroom where the
hearing will be held to learn of any local requirements or
practices with regard to such stipulations and the early setting of
a hearing. Because it is best to have a stipulation specify the
date, time, and place of the hearing, counsel should determine in
advance that the court can accommodate the date, time, and place
agreed on by the parties.If such an agreement can be reached
between the parties, a stipulation should be prepared, signed, and
submitted to the court as promptly as possible. Counsel should
consult local court rules or policies in connection with
stipulations.12.132.By Application for Order Shortening TimeIf a
stipulation for shortening time is not possible or practical to
obtain, counsel must seek an order shortening time through a formal
application to the court. An application for an order shortening
time must be supported by an affidavit or declaration showing good
cause. Cal Rules of Ct 3.1300. In other words, counsel must
demonstrate that the moving party would suffer some substantial
prejudice or harm without the motion being heard on shortened time.
On ex parte applications, see chap 13. Although applications to
shorten time are usually made by moving parties, they can also be
made by a responding party that desires an earlier hearing date
than that specified in the moving partys notice of motion.PRACTICE
TIP:The order shortening time should be drafted to address the
following: (1) when motion papers are to be served, (2) when
opposition papers are due, (3) when reply papers are due, (4) how
papers are to be served (e.g., by hand delivery), and (5) the date
of the hearing.12.14C.Extending TimeWhen it is desired to file a
notice of motion, or to seek a hearing on a motion on a date that
is after the last date prescribed by statute or rule, it is
necessary to obtain an extension either from opposing counsel, in
writing, or from the court.12.151.By StipulationThe parties may
agree, by stipulation, to extend the time to serve and file
motions, or the time for hearing on a motion. It is safest to
prepare a formal stipulation, signed by both parties, for this
purpose. Local court rules or policies should also be consulted in
connection with these stipulations, and they may not be favored
under current delay reduction rules.12.162.By MotionIf the parties
will not agree to stipulate, counsel must apply to the court for an
extension of time. See Cal Rules of Ct 2.20. Counsel must present
the application for an order extending time to the judge before
whom the action, motion, or other proceeding is pending, or, if
that judge is absent or not able tohear it, to another judge of the
same court. Cal Rules of Ct 2.20(a). The application must disclose
the nature of the case and any prior extension granted by
stipulation or court order. Cal Rules of Ct 2.20(b).After the order
has been signed, it must be filed immediately and copies served
within 24 hours unless the judge has set a different time. Cal
Rules of Ct 2.20(c).Be sure to consult local rules regarding
extensions. On ex parte applications, see chap 13.III.NOTICE OF
MOTION AND MOTION 12.17A.Motion DefinedA motion is an application
for an order from a court or judge, to be made or entered in
writing and not included in a judgment. CCP 1003. Making a motion
is the process of applying for an order. A motion is deemed to have
been made, and to be pending before the court, on all the grounds
stated in the notice of motion when the moving party has served and
filed the notice of motion. CCP 1005.5. Insome circumstances,
custom or statute may dictate that the order to show cause
procedure be used (see chap 13), but the effect of these two
procedures is the same. See Marriage of Nadkarni(2009) 173 CA4th
1483, 1499 (order to show cause constitutes notice of
motion).12.18B.Necessary PapersRequired motion papers include a
notice of motion (see 12.1912.43), a supporting memorandum (see
12.4412.58), and, if appropriate, the presentation of evidence by
declarations (or affidavits) or other means (see 12.5912.75). See
Cal Rules of Ct 3.1112. These papers may be filed as separate
documents or combined in one or more documents. If items are
combined, they must be listed separately in the caption. See
example of Notice of Motion and Motion format in 12.170.Certain
motions may require additional papers. See, e.g., CCP 437c(b)(1)
(summary judgment or summary adjudication motions) (see chap 36);
CCP 425.16 (anti-SLAPP motions) (see chap 24A); Cal Rules of Ct
3.1345 (motions to compel discovery) (see California Civil
Discovery Practice, chap 15 (4th ed Cal CEB)). 12.19C.Notice of
Motion and MotionThe notice of motion is the formal statement that
identifies the time, date, and place of the hearing, the nature of
the order being sought, the grounds for the motion, and the
documents and other items that support the motion. CCP
1010.NOTE:Under Cal Rules of Ct 3.1112, a motion that is largely
duplicative of the notice of motion must be filed in addition to
the notice of motion, even though CCP 1005.5 provides that a motion
is deemed made on serving and filing of the notice of motion, and
many of the specific statutes authorizing the filing of a motion
only require the filing of a notice of motion. See, e.g., CCP
418.10 (defendant may file notice of motion to quash service of
summons or to stay or dismiss action on inconvenient forum ground)
and CCP 435 (any party may file notice of motion to strike
pleading). It therefore appears that the notice of motion and
motion may be combined in a single document titled Notice of Motion
and Motion.The Notice of Motion and Motion must conform to the
general form and format requirements that apply to all court
papers. See chap 11. See example of Notice of Motion and Motion
format in 12.170. 1. Physical Formatting12.20a.Paper, Print,
Spacing, and MarginsCalifornia Rules of Ct 2.1002.119 generally set
the format rules for forms. The paper must be opaque, unglazed,
white, or unbleached (Cal Rules of Ct 2.103). In addition, only one
side of the paper may be used. Cal Rules of Ct 2.102.The type must
be 12-point with a typeface equivalent to Courier, Times Roman, or
Helvetica, and the printed color must be blue-black or black. Cal
Rules of Ct 2.104.The lines must be one and one-half spaced or
double spaced and numbered consecutively. Cal Rules of Ct 2.108(1),
(4). The left margin must be at least one inch and the right margin
must be at least inch. Cal Rules of Ct 2.107.Additions, deletions,
or interlineations must be initialed by the clerk or judge at the
time of filing. All copies served must conform to the original
filed with the court, including the numbering of lines, pagination,
additions, deletions, and interlineations. Cal Rules of Ct
2.110.12.21b.BindingThe pages of each document and exhibit must be
attached at the top in a way that allows the pages to be turned
easily and the entire page to be read. Cal Rules of Ct 3.1110(e).
The pages must be top-punched and firmly bound together at the top.
Cal Rules of Ct 2.113, 2.115. 12.22c.FooterDocuments bound together
must be consecutively paginated. Cal Rules of Ct 3.1110(c). Pages
must be consecutively numbered at bottom. Cal Rules of Ct 2.109.
Except for exhibits, each paper filed with thecourt must bear a
footer, printed in at least 10-point type, in the bottom margin of
each page, below the page number and divided from the rest of the
page by a printed line, that contains the title of the paper (e.g.,
Defendant ABC Corp.s Motion for Summary Judgment) or some clear and
concise abbreviation. Cal Rules of Ct 2.110. 2. Information
Required in Caption12.23a.Attorney InformationThe first page of the
notice must state the name, address, telephone number, fax number
(optional), e-mail address (optional), and State Bar number of the
attorney or of the party if he or she is appearing in propria
persona. Cal Rules of Ct 2.111(1). See example of Notice of Motion
and Motion format in 12.170. 12.24b.Title of CourtThe attorney
information should be followed by the title of the court. Cal Rules
of Ct 2.111(3). Below the title of the court, the caption in every
pleading in a limited civil case must state Limited Civil Case. See
Cal Rules of Ct 2.111(9). See example of Notice of Motion and
Motion format in 12.170. 12.25c.Telephone AppearanceThe line
Telephone Appearance should be added below the title of the moving
papers by a moving party who wishes to attend the hearing by
telephone. Cal Rules of Ct 3.670(h)(1)(A). See CCP 367.5. Counsel
generally has the option of appearing by telephone in any hearing
or conference at which witnesses are not expected to be called to
testify. Cal Rules of Ct 3.670(b)(c) (rule applicable to general
civil cases, unlawful detainer cases, and probate proceedings). See
also Cal Rules of Ct 3.670(f) (court discretion to modify Cal Rules
of Ct 3.670 rule). Local rules may provide procedures for
appearance by telephone. See Cal Rules of Ct, Standards of J Admin
3.1(d).12.26d.Title of CaseBelow the title of the court, in the
space to the left, the motion should state the title of the case.
Cal Rules of Ct 2.111(4). Motion papers may include the short
caption of the case, i.e., the name of the first party on each
side. See Cal Rules of Ct 2.111(4). See example of Notice of Motion
and Motion format in 12.170. 12.27e.Nature of PaperTo the right of
the case name, the caption should include a statement of the nature
of the paper, i.e., a brief description of the nature of the order
sought, e.g., Notice of Motion and Motion for Judgment on the
Pleadings. Cal Rules of Ct 2.111(6). See example of Notice of
Motion and Motion format in 12.170. 12.28f.Date, Time, Location of
HearingBelow the identification of the document, the caption should
show the date, time, and location (if ascertainable) of any
scheduled hearing, the name of the hearing judge (if
ascertainable), the date of filing of the action, and the trial
date, if one is set. Cal Rules of Ct 3.1110(b). See example of
Notice of Motion and Motion format in 12.170.12.29(1)Date and
TimeThe notice of motion must state when the motion will be made.
CCP 1010. The date set for hearing the motion and the time when the
hearing calendar for that day will be called must be included in
the caption. Cal Rules of Ct 3.1110(b). Failure to specify a date
and time renders the notice ineffective. Bohn v Bohn (1913) 164 C
532, 536. See example of Notice of Motion and Motion format in
12.170.PRACTICE TIP:When drafting a notice of motion, counsel can
determine the hearing date to specify in it by (1) deciding when
the notice will be served (i.e., the date of delivery or mailing to
adverse counsel); (2) computing the minimum notice time required
(unless an order shortening time is obtained) and any maximum time;
and (3) telephoning the court clerk or law and motion calendar
clerkto learn the first available convenient calendar date within
the period. See 12.712.10 on computing notice time, and 12.1112.16
on shortening and extending time.Counsel should consult local rules
to determine the courts days and times for hearings.
12.30(2)LocationLocation is shown by specifying the department in
which the hearing is to take place in the caption. See Cal Rules of
Ct 3.1110(b). Attorneys should add the address at the end of the
first paragraph of the notice, but need not include it in the case
caption itself. See example of Notice of Motion and Motion format
in 12.170.Motions must be made in the court in which the action is
pending. CCP 1004. The place for the hearing is usually either (1)
the courtroom of the judge assigned to the case or (2) the law and
motion or other department or division established for such
hearings. If there is any doubt as to where a motionshould be
noticed for hearing, counsel should review the local rules or
consult the appropriate court clerk. See, e.g., San Francisco Ct R
8.2 (law and motion calendar). 12.31g.Name of Hearing JudgeThe
notice of motion must specify the name of the hearing judge, if
available, immediately below the case number in the case caption.
Cal Rules of Ct 2.111(7), 3.1110(b).PRACTICE TIP:When law and
motion matters are assigned to a particular department, the notice
of motion should specify the name of the judge who normally sits in
that department. If the case has been assigned to one judge for all
purposes, that judges name should be specified.The notice of motion
should also note whether the proceeding is pending before a referee
appointed under CCP 638 or 639. Cal Rules of Ct 2.111(9).California
Civil Procedure Before Trial 12 Noticed Motions
12.32h.AttachmentsThe first page, immediately below the number of
the case, must also state the nature of any attached document,
other than an exhibit. Cal Rules of Ct 3.1110(b). When other
papers, e.g., a memorandum or declarations, are attached to the
notice of motion, these papers should be named in the caption. Cal
Rules of Ct 3.1110(b). See example of Notice of Motion and Motion
format in 12.170.12.333.Body of Notice of Motion and MotionThe
motion must identify the party bringing the motion, name the
parties to whom it is addressed, briefly state the basis for the
motion and the relief sought, and if a pleading is being
challenged, the portion being challenged must be specified. Cal
Rules of Ct 3.1112(d). A typical format for the Motion and Notice
of Motion is the following:PLEASE TAKE NOTICE that on _ _[date]_ _
at _ _[time]_ _ or as soon thereafter as the matter may be heard,
in _ _[department]_ _ of the _ _[court]_ _ located at _ _[full
address]_ _, _ _[e.g., plaintiff]_ _, _ _[name]_ _, will and hereby
does move the Court for an order _ _[specify nature of order
sought]_ _ under _ _[specify statute or rule authorizing motion]_ _
on the following grounds: _ _[state grounds, preferably in terms
used in authorizing statute or rule; if more than one ground, list
them as numbered or bulleted items]_ _.This motion is based on the
attached documents and exhibits, including _ _[specify by title (or
nature) and date, e.g., the declaration of _ _[name]_ _, dated _ _
_ _ _ _]_ _, _ _[and]_ _ on all papers filed and records in this
action _ _[, and on any evidence received at the hearing]_ _.See
example of Notice of Motion and Motion format in
12.170.12.34a.Introductory LineNo statute or rule requires an
introductory line, but attorneys sometimes begin the body of the
Notice ofMotion with To all parties and their attorneys of record.
12.35b.Nature of Order SoughtThe opening paragraph of the notice
must state the nature of the order being sought. Cal Rules of Ct
3.1110(a), 3.1112(d). If monetary sanctions are sought, whether
against the party or a party and its counsel, the notice of motion
must identify every person, party, and attorney against whom the
sanctionis sought. See, e.g., Blumenthal v Superior Court(1980) 103
CA3d 317 (case predated CCP 2023.040 but is probably still
applicable under present statutes). See also Cal Rules of Ct
3.1112(d). See example of Notice of Motion and Motion format in
12.170.PRACTICE TIP:It is sometimes useful to begin the process of
motion drafting by starting with a draft of the order being sought,
which may help focus the research and drafting of the other motion
papers. 12.36c.Grounds for Issuance of OrderThe opening paragraph
of the notice of motion must state the grounds on which the motion
is made. CCP 1010; Cal Rules of Ct 3.1110(a), 3.1112(d). The
statement should define the issues for the adverse party and the
court. Hernandez v National Dairy Prods. Co. (1954) 126 CA2d 490,
493. It is good practice to specify the code section or rule that
provides for the order sought. See example of Notice of Motion and
Motion format in 12.170. 12.37(1)Effect of Failure to State
GroundsA failure to state grounds for the motion may lead the judge
to deny the motion or an appellate court to vacate an order
granting the motion. See Traders Credit Corp. v Superior Court
(1931) 111 CA 663, 665 (dismissal vacated). Some courts, however,
have granted motions, or upheld orders, even though no grounds were
stated in the notice of motion, if the grounds clearly appeared
from other papers filed with the notice. See 12.39. 12.38(2)Courts
Consideration of Grounds Not Stated in MotionCourts also differ on
whether grounds not stated in the notice of motion will be
considered in support of the motion. Compare Taliaferro v
Riddle(1959) 167 CA2d 567, 570 (reversal of order not supported by
either ground specified in notice), Hernandez v National Dairy
Prods. Co. (1954) 126 CA2d 490, 493 (if new matter could be argued
at hearing, purpose of notice of motion would be only to advise
time and place), and Westphal v Westphal(1943) 61 CA2d 544, 550
(when motion made on ground thatcase should be dismissed under
mandatory 5-year dismissal statute, party cannot argue on appeal
that court properly exercised discretion to dismiss for lack of
diligent prosecution), with Tarman v Sherwin(1961) 189 CA2d 49, 51
(affidavits, supporting memorandums, and other documents in court
file, whenreferred to in the Notice, can be considered in
amplification of grounds). See also Josephson v SuperiorCourt(1963)
219 CA2d 354, 362 (statements in affidavits disregarded; leave
needed to base motion on grounds not enumerated).These disparate
holdings can be reconciled, as at least one court has done, by
stating that (Luri v Greenwald(2003) 107 CA4th 1119, 1125)[a]s a
general rule, the trial court may consider only the grounds stated
in the notice of motion. [Citations.] An omission may be overlooked
if the supporting papers make clear the grounds for relief sought.
[Citations.] The purpose of these requirements is to cause the
moving party to sufficiently define the issues for the information
and the attention of the adverse party and the court.
[Citation.]PRACTICE TIP:The best practice is to state the grounds
in the notice of motion. 12.394.Identification of Papers Supporting
the MotionA notice of motion must state the papers, if any, on
which it is to be based. CCP 1010. It is customary to also state
that the motion will be based on all pleadings, papers, and records
filed in the action. This statement may persuade the judge at the
hearing to consider a document in the case file, the significance
of which was not recognized when the motion papers were filed.
However, if counsel knows that part of a pleading or other paper
supports the motion, or provides basis for argument, it is good
practice to identify that part in the memorandum or declaration
accompanying the notice, or to attach a copy to the moving papers
as an exhibit. See example of Notice of Motion and Motion format in
12.170.It is routine to refer to the attached memorandum in support
of the motion that must be filed with the motion. See Cal Rules of
Ct 3.1112. See 12.4412.58. Similarly, the evidence on which a
motion is based is usually presented to the judge in the form of
affidavits or declarations (see 12.5912.75) andthe notice of motion
should refer to each such document, e.g., the attached affidavit of
Walter Johnson, or the attached declarations of Walter Johnson,
Charles Able, and George Smith. When a declaration in support of a
motion is required by statute or rule, the notice should refer to
the attached declaration. See, e.g., CCP 1008(b) (when similar
motion has been made, declaration must state what motion was made
before) and CCP 2025.480(b) (discovery motion). To the extent
practicable, all supporting memorandums, declarations, and
affidavits must be attached to the notice of motion. Cal Rules of
Ct 3.1113(j).12.40a.Reference to Papers Previously Filed With
CourtReference to papers previously filed with the court must be by
date of execution and title. Cal Rules of Ct 3.1110(d). All
references to exhibits or declarations in supporting or opposing
papers must refer to the number or letter of the exhibit, the
specific page, and if applicable, the paragraph or line number. Cal
Rules of Ct 3.1113(k).WARNING:Some attorneys also routinely
conclude the listing of papers on which a motion is based with a
clause such as and such oral and documentary evidence as may be
presented at the hearing on this motion. This reference may aid a
later argument that testimony or a new exhibit should be admitted.
However, most judges resist taking new evidence at the hearing. See
12.122. The court mustbe notified of a need to present evidence at
the hearing by a written statement setting forth the nature and
extent of the proposed evidence. Cal Rules of Ct 3.1306(a). Any
request for leave to present evidence should be supported by a
declaration of facts and reasons. If the need is known at the time
the notice of motion is filed, the nature of the evidence should be
specified in the notice and the reasons forits introduction stated
in the attached declarations and memorandum. The notice or
statement should also state how much hearing time presentation of
the evidence will require. See Cal Rules of Ct
3.1306(a).12.41b.Papers Not Previously Served on Adverse PartyIf
the notice of motion mentions a paper that has not yet been served
on adverse parties, a copy of that paper must be served and filed
with the notice. CCP 1010. 12.425.Date; SignatureThe date that a
notice of motion is served is normally shown on an attached proof
of service form. See 12.8212.86. Thus, although customary, it is
not necessary to type a date on the notice. If the notice is served
by mail, and is not accompanied by a certificate of mailing, the
date and place of mailing must be typed or written on the notice of
motion itself. CCP 1013(b).A notice of motion should be signed by
the partys attorney of record, not the party. See Jansson v
National S.S. Co. (1917) 34 CA 483, 486. A subscription by the
attorneys associate or office is normally sufficient. See Caldwell
v Geldreich(1955) 137 CA2d 78, 82 (vacationing attorneys name
signed by associate). See also Buell v Buell (1891) 92 C 393, 396
(newly employed attorney signed notice; no general statute or rule
requires that notices of motion be signed; absence of signature
does not ordinarily vitiate notice). 12.43D.Checklist: Procedures
for Motions and HearingsMoving party__Consult statute or rule that
authorizes motion for information on:__Procedure required or
permitted__Time limits for service or filing__Evidentiary showing
required__Compute first and last day for service or filing (see
12.712.10).__If the period has passed, check statute or rule for
late filing procedures.__Determine and comply with any meet and
confer requirements. See Cal Rules of Ct 3.724; 40.51.__Check with
court clerk, if appropriate, for availability of hearing dates, and
for any local rules or customs relating to particular
motion.__Prepare moving papers:__Notice of motion (see
12.1912.42)__Memorandum in support of motion (see
12.4412.58)__Declarations or affidavits, if needed (see
12.5912.75)__Exhibits, i.e., documents or papers not yet on file in
action that bear on motion, if needed (see 12.7712.80)__Requests
that court take judicial notice, if needed (see 12.81)__Proposed
order, if needed (see 12.12512.127)__Application for order
extending or shortening time, if needed (see 12.1112.16)__Any other
required papers__Proof of service (see 12.8212.90)__Serve and file
moving papers (see 12.8212.90).__Review opposition papers and serve
and file reply or supplementary papers, if needed (see
12.110).__Check with court for tentative ruling if one has been
made.__Make arrangements for court reporter to be at hearing (see
12.123).__Prepare for and attend hearing, and present the oral
argument (and evidence, if permitted) in favor of motion (see
12.11212.122).__If favorable ruling is obtained, prepare notice of
ruling or form of order, if needed (see 12.126).__Serve and file
notice of ruling or signed order (unless done by court or otherwise
unnecessary) (see 12.130). IV. SUPPORTING DOCUMENTS A. Memorandum
in Support of Motion12.441.When Supporting Memorandum RequiredAll
motions and demurrers must be supported by a memorandum that
complies with Cal Rules of Ct 3.1113. Cal Rules of Ct 3.1112(a),
3.1113. A demurrer or written notice of motion under CCP 1005,
except for a motion listed in Cal Rules of Ct 3.1114, must be
accompanied by supporting memorandum. Cal Rules of Ct 3.1113(a). On
motions not requiring a supporting memorandum, see 12.45. The
absence of the memorandum may be construed by the court as an
admission that the motion or special demurrer is not meritorious
and cause for its denial and, in the case of a demurrer, as a
waiver of all grounds not supported. Cal Rules of Ct
3.1113(a).PRACTICE TIP:The supporting memorandum is used to
convince the judge who hears the motion that the law and facts
support issuance of the order sought. Persuasion is the object of
the memorandum. Even though counsel may have a chance to present
argument and cite authorities at the hearing on the motion (see
12.9712.122), some courts issue a tentative ruling based on the
motion and response papers alone (see 12.12412.130), and in other
courts the judge will come to the hearing with a ruling already in
mind. The written memorandum should be the best argument for the
motion that can be made; only in rare and unusual situations should
a persuasive argument or point be held back for later
use.12.452.Motions, Applications, and Petitions Not Requiring
MemorandumCivil motions, applications, and petitions filed on
Judicial Council forms that do not require a supporting memorandum
include the following (Cal Rules of Ct 3.1114(a)): Application for
appointment of guardian ad litem in a civil case; Application for
an order extending time to serve pleading; Motion to be relieved as
counsel; Motion filed in small claims case; Petition for change of
name or gender; Petition for declaration of emancipation of minor;
Petition for injunction prohibiting harassment; Petition for
protective order to prevent elder or dependent adult abuse;
Petition of employer for injunction prohibiting workplace violence;
Petition for order prohibiting abuse (transitional housing);
Petition to approve compromise of a claim of a minor or an
incompetent person; and Petition for withdrawal of funds from a
blocked account. Despite Cal Rules of Ct 3.1114(a), if it would
further the interests of justice, a party may submit, or the court
may order the submission of, a memorandum in support of any motion,
application, or petition. The supporting memorandum must comply
with Cal Rules of Ct 3.1113. Cal Rules of Ct 3.1114(b). 3. Format
of Supporting Memorandum12.46a.Contents of Supporting MemorandumA
supporting memorandum must contain (Cal Rules of Ct 3.1113(b)) the
following: A statement of facts; A concise statement of the law;
The evidence and argument relied on; and A discussion of the
statutes, cases, and textbooks cited in support of the position
being advanced. 12.47b.Format and StyleA case citation must include
the official reports volume and page number and year of decision.
No other citations may be required. Cal Rules of Ct 3.1113(c).The
style used in a supporting memorandum shall be that set forth in
Jessens California Style Manual (4th ed 2001), or that stated in
the most recent edition of The Bluebook: A Uniform System of
Citation,at the option of the party filing the document. The same
style shall be used consistently throughout the memorandum. Cal
Rules of Ct 1.200. 12.48c.Length of Supporting MemorandumAn opening
or responding memorandum may not exceed 15 pages, except in a
summary judgment or a summary adjudication motion, where they are
limited to 20 pages. Cal Rules of Ct 3.1113(d). A reply may not
exceed 10 pages. Cal Rules of Ct 3.1113(d). The page limit does not
include exhibits, declarations, attachments, a table of contents, a
table of authorities, or the proof of service. Cal Rules ofCt
3.1113(d).Permission to file memorandums of greater than the
specified number of pages can be sought by ex parte application at
least 24 hours before the memorandum is due. Cal Rules of Ct
3.1113(e). The application must state the reasons the argument
cannot be made within the page limits. Cal Rules of Ct
3.1113(e).PRACTICE TIP:Some judges require that the memorandum be
already prepared and presented to the court at the ex parte hearing
so that the court can assess the true need. Applications for
permission to file memorandums exceeding the specified number of
pages may be granted by a judge, but rarely as a matter of
course.The memorandum should be concise and not unduly detailed or
repetitive. Most judges hearing motions have very limited time
available for reading papers and they appreciate well-written,
to-the-point papers.A supporting memorandum that exceeds the page
limits of Rule 3.1113(d) is filed and treated the same as a
late-filed paper. Cal Rules of Ct 3.1113(g).12.49d.Table of
Contents; Table of AuthoritiesIf the supporting memorandum exceeds
10 pages, it must include a table of contents and a table of
authorities. If it exceeds 15 pages, it must also include an
opening summary of argument. Cal Rules of Ct 3.1113(f). See
12.52.If the supporting memorandum includes a table of contents and
table of authorities, the caption page or pages must not be
numbered; the pages of the tables must be numbered consecutively,
using lower-caseRoman numerals starting on the first page of the
tables; and the pages of the text must be numbered consecutively
using Arabic numerals starting on the first page of the text. Cal
Rules of Ct 3.1113(h). IV. SUPPORTING DOCUMENTS A. Memorandum in
Support of Motion12.441.When Supporting Memorandum RequiredAll
motions and demurrers must be supported by a memorandum that
complies with Cal Rules of Ct 3.1113. Cal Rules of Ct 3.1112(a),
3.1113. A demurrer or written notice of motion under CCP 1005,
except for a motion listed in Cal Rules of Ct 3.1114, must be
accompanied by supporting memorandum. Cal Rules of Ct 3.1113(a). On
motions not requiring a supporting memorandum, see 12.45. The
absence of the memorandum may be construed by the court as an
admission that the motion or special demurrer is not meritorious
and cause for its denial and, in the case of a demurrer, as a
waiver of all grounds not supported. Cal Rules of Ct
3.1113(a).PRACTICE TIP:The supporting memorandum is used to
convince the judge who hears the motion that the law and facts
support issuance of the order sought. Persuasion is the object of
the memorandum. Even though counsel may have a chance to present
argument and cite authorities at the hearing on the motion (see
12.9712.122), some courts issue a tentative ruling based on the
motion and response papers alone (see 12.12412.130), and in other
courts the judge will come to the hearing with a ruling already in
mind. The written memorandum should be the best argument for the
motion that can be made; only in rare and unusual situations should
a persuasive argument or point be held back for later use.
12.504.Organization of Supporting MemorandumThe typical
organization of a supporting memorandum begins with an introductory
section, includes one or more separate sections focusing on
particular aspects of the motion, and ends with a concluding
summary. The function of each of these portions of the memorandum
is discussed separately in 12.5112.57.12.51a.Introductory
Statement; IntroductionAfter the case caption, the memorandum
usually begins with an introductory sentence that identifies the
moving party or parties and the motion being supported. This can be
done with a statement such as the following:Defendant Pan-Pacific
Machinery and Foundry, Inc., hereafter Pan-Pacific, submits the
following memorandum in support of its motion requiring Plaintiff
Kimberly Wilson to furnish security for costs.This is often an easy
way to establish the shorthand reference to the moving party or
parties used later in the supporting memorandum (e.g., as
Plaintiff, Defendant, or by a last name or abbreviated
name).PRACTICE TIP:It is generally good practice to include,
following the introductory statement, a section labeled
Introduction, whose purpose is to very briefly define the nature of
the motion being made andits context. Doing so usually requires a
brief description of the lawsuit and of the motion and its purpose.
This introduction should be succinct and should convey to the judge
who is reading the motion the importance of the motion to the case.
If a separate summary of the argument is not included (see 12.52),
the introductory section can also briefly summarize or state why
the motion should be granted. b. Argument12.52(1)Summary of
ArgumentAny memorandum that exceeds 15 pages must contain an
opening summary of argument. Cal Rules of Ct 3.1113(f). This is
rare because memorandums may not exceed 15 pages without leave of
court. See Cal Rules of Ct 3.1113(d). If appropriate, the summary
of argument should be relatively short, and it is best to have a
separate heading identifying it as a summary of the
argument.NOTE:For the footer requirements, see Cal Rules of Ct
2.110 and 12.22.12.53(2)Concise and Persuasive ArgumentAfter the
introductory section or sections, the supporting memorandum should
include one or more separate sections dealing with the specifics of
the arguments being made. The arguments should be divided into
separate sections, with captions, each dealing with a specific
issue or point. Each section should be relatively short. If the
argument on one topic must be lengthy, it is often good practice to
divide it into subsections with subheadings. Separate sections and
separate subheadings allow for the judge reading the motion to more
easily follow the arguments and points being made and also to more
easily return to a specific argument if the judge wishes to reread
a particular point.The captions or subcaptions for separate
argument sections should be descriptive (and accurately identify
the argument being made) and be as brief and concise as possible.
Phrase the captions and subcaptions in an argumentative manner,
i.e., as an assertion in favor of the moving party (e.g., The facts
demonstrate that there was no privity between plaintiff and
defendant rather than simply Privity or Lack of privity).
Sometimes, however, especially with subheadings, short subject
matter captions are sufficient.12.54(3)Applicable Statutes and
CasesThe supporting memorandum must contain both a concise
statement of the law and a discussion of the applicable statutes
and cases. As a rule, counsel should look first to the statutes
applicable to the legal issue involved in the motion. Those may
include statutes defining the standards or requirements for the
motion (e.g., CCP 437c for summary judgments) or the substantive
legal standards involved in the case itself (e.g., the applicable
statute of limitations).Next, counsel should research the
applicable case law, both for the legal point or issue addressed in
the motion and for the standards applicable for the type of motion
being made.Each point or statement should be supported by citation
to a statute, court rule, or reported decision. If these are not
available, other authority may include textbooks or law review
articles. Generally, it is more effective to cite one statute or
case, and point out its specific applicability, than to support a
point with string citations. A California Supreme Court opinion
carries more weight than a court of appeal opinion unless the
latter is more on point or more recent. Often, one Supreme Court
citation and the latest court of appeal case provide all the
support needed for a point unless it is important to show how a
rule has been applied in a variety of factual settings. On citation
format, see 12.47.JUDGES PERSPECTIVE:The supporting memorandum
should clearly identify the important controlling cases and
separate them from cases cited for preliminary or foundational
matters. Cases believed to bear strongly on the particular matter
should be discussed at length, commencing with California cases.It
is better practice to set forth a brief summary or quotation of the
relevant substance of the cited authority and to point out in what
way it bears on the matter before the court than to provide a
plethora of citations. A single case in point may be sufficient.
The value of points made and the legal authorities supporting them
lies in their current relevancy and not in their quantity. Each
case cited for other than preliminary or elementary matters should
be discussed in terms of its relationship to the case at
bar.12.55(a)Improper Use of Repealed or Overruled Legal
AuthorityCounsel may not misquote authorities or cite statutes that
have been repealed or held unconstitutional or cases that have been
overruled. Cal Rules of Prof Cond 5200.12.56(b)Using Authority From
Jurisdictions Outside CaliforniaWhen the supporting memorandum
cites federal cases, statutes, constitutional provisions, or rules,
or cites authorities from jurisdictions outside California, the
judge may require that a copy be attached to the papers and tabbed
as an exhibit. Cal Rules of Ct 3.1113(i)(1). See 12.78. A party may
request copies of the authorities and counsel must promptly provide
them. Cal Rules of Ct 3.1113(i)(3). If a California case is cited
before it is published in the advance sheets, the citation must
include the title, case number, date of decision, and (if
applicable) appellate district in which the case was decided. A
judge may also require that a copy of the opinion be attached and
tabbed. Cal Rules of Ct 3.1113(i)(2).12.575.ConclusionA concluding
section that summarizes the major points and arguments made and
states the nature of theorder or relief sought in the motion is
customarily included. This type of section should be brief, and not
a verbatim repetition of the points already made.
12.586.SignatureThere is no general requirement that a supporting
memorandum be dated or signed. Most attorneys do date and sign
them, and a common signature format is shown in 12.171. B.
Declarations12.591.Declaration Compared With AffidavitDeclarations
and affidavits are written statements used to present facts to the
judge who will rule on themotion. Declarations are made and signed
under penalty of perjury (see CCP 2015.5; see also 12.72),and
affidavits are made under oath and attested to, ordinarily by a
notary public (see CCP 2003). Declaration is used generally in this
book to cover both a declaration under penalty of perjury and an
affidavit. CCP 2015.5. In California, the declaration form, which
need not be notarized, is more widely used than the affidavit form.
A declaration in the form prescribed by CCP 2015.5 is as valid and
effective in support of a motion as an affidavit. See 12.60 and
form in 12.172.Whichever form is used, it is important that it
conform strictly to content and execution requirements. Ajudge may
disregard an improperly phrased or executed statement. See, e.g.,
Palm Springs Alpine Estates, Inc. v Superior Court(1967) 255 CA2d
883, 888. 12.602.Declaration as Substitute for Oral
TestimonyWritten declarations are used in motion proceedings as a
substitute for sworn oral testimony. See, e.g., Evid C 135, 225;
Cal Rules of Ct 3.1306(a). Code of Civil Procedure 1005 requires
that a written notice of motion be accompanied by supporting
declarations.Motions are usually made and determined on
declarations alone. See Cal Rules of Ct 3.1306(a); Beckett v Kaynar
Mfg. Co. (1958) 49 C2d 695, 698 n3. Declarations are used both to
provide factual matters for the decision on the motion and as a
means for stating facts in a direct and logical order, sparing the
judge the need to ferret them out of the case record. Some motions
can be granted, of course, even though not supported by a
declaration. See, e.g., Black Bros. Co. v Superior Court(1968) 265
CA2d 501, 507, disapproved on other grounds in Denham v Superior
Court(1970) 2 C3d 557. Other motions require that a declaration be
submitted. See, e.g., CCP 2023.010(i), 2023.020 (discovery
motions); CCP 1008(b) (when prior similar motions have been made);
Cal Rules of Ct 3.770 (request for dismissal of class action); Cal
Rules of Ct 3.1342(a) (dismissal for failure to prosecute); Cal
Rules of Ct 3.1360 (motion for lien on a cause of action or
judgment).In exercising its power to exclude or permit oral
testimony, the trial court follows the principal that
constitutional due process entitles the parties to notice and
hearing appropriate to the case. See Marriage of Nadkarni(2009) 173
CA4th 1483, 1499 (because application for restraining order under
Domestic Violence Prevention Act was facially sufficient, dismissal
reversed and case remanded for hearing on merits). IV. SUPPORTING
DOCUMENTS A. Memorandum in Support of Motion12.441.When Supporting
Memorandum RequiredAll motions and demurrers must be supported by a
memorandum that complies with Cal Rules of Ct 3.1113. Cal Rules of
Ct 3.1112(a), 3.1113. A demurrer or written notice of motion under
CCP 1005, except for a motion listed in Cal Rules of Ct 3.1114,
must be accompanied by supporting memorandum. Cal Rules of Ct
3.1113(a). On motions not requiring a supporting memorandum, see
12.45. The absence of the memorandum may be construed by the court
as an admission that the motion or special demurrer is not
meritorious and cause for its denial and, in the case of a
demurrer, as a waiver of all grounds not supported. Cal Rules of Ct
3.1113(a).PRACTICE TIP:The supporting memorandum is used to
convince the judge who hears the motion that the law and facts
support issuance of the order sought. Persuasion is the object of
the memorandum. Even though counsel may have a chance to present
argument and cite authorities at the hearing on the motion (see
12.9712.122), some courts issue a tentative ruling based on the
motion and response papers alone (see 12.12412.130), and in other
courts the judge will come to the hearing with a ruling already in
mind. The written memorandum should be the best argument for the
motion that can be made; only in rare and unusual situations should
a persuasive argument or point be held back for later use. 3.
Selecting Declarant12.61a.Tactical ConsiderationsThe attorney must
make tactical decisions in determining who should submit a
declaration in support ofa motion or how many declarations to
submit. If a factual point needs to be established, it must, of
course, be established by someone with sufficient personal
knowledge that the declaration statements are competent evidence.
See 12.65. The declarant who is in a position to verify or present
the fact willprobably be the most persuasive, and if several facts
are to be presented, it is usually advantageous and more efficient
to have those facts addressed by as few witnesses as possible.There
are, however, significant differences between trial testimony and
fact finding through declarations. Declarations may be carefully
drafted by counsel, whereas trial testimony tends to be spontaneous
in its wording and depends on the witnesss particular personality,
linguistic skills, and state of mind. Furthermore, a declarant in a
written declaration will not ordinarily be able to be
cross-examined on what is included in the declaration prior to the
hearing on the motion.12.62b.Attorney as DeclarantWhether counsel
should act as a declarant depends on the nature of the facts to be
presented and the necessity of using the attorney for that purpose.
The most common situations in which counsel presentshis or her own
declaration are the following: When the declaration addresses
communication between counsel; If the declaration presents copies
of pleadings or discovery material (e.g., copies of documents
produced, interrogatory answers, deposition transcripts); If a
particular statute calls for a certificate that could be
appropriately provided only by counsel (see, e.g., CCP 1008(b)); or
If the facts presented involve the activities of counsel in the
litigation (e.g., time spent and the cost of preparing or defending
a motion when sanctions are sought). PRACTICE TIP:Counsel should be
careful not to submit a declaration that addresses factual matter
directly supporting or contradicting pleading allegations. Such a
declaration would risk waiving any applicable attorney-client or
work-product privileges.The California Rules of Professional
Conduct preclude counsel from acting as an advocate for a party
before a jury when counsel will also testify on substantive
matters, at least without the clients informed, written consent.
Cal Rules of Prof Cond 5210. Even without jury involvement, when
counsel is expected to be a witness at trial (a concern if counsel
is the best person to submit a substantive declaration as to
facts), consideration should be given as to whether it is in the
clients best interests to have counsel act in both capacities. On
limitations of counsel acting as a witness, see 4.34. 4. Format of
Declaration12.63a.CaptionA declaration is usually drafted as a
separate paper, with the caption prescribed for court papers by Cal
Rules of Ct 2.1002.119, even though it is attached to a notice of
motion. A defect in the title of the action does not render the
paper invalid or ineffectual if it intelligibly refers to the
action. CCP 1046. The caption of a declaration must identify the
name of the declarant (or affiant) and identify the motionor
proceeding that it supports (or opposes). Cal Rules of Ct
3.1115(a). For example, a caption could read: Declaration of John
Jones in Support of Plaintiffs Motion for Summary Judgment.NOTE:The
requirement in Cal Rules of Ct 3.1110(b) that the date and time of
hearing, the number or designation of the department or division to
which it is assigned, the name of the hearing judge (if
ascertainable), the date of filing of the action, and the trial
date be stated (see 12.28) may apply to declarations as well as to
the notices of motion to which they are attached. See Cal Rules of
Ct 2.3(2).In an affidavit, it is customary to follow the caption
with a line stating the venue, i.e., the state and county (or other
subdivision) where the affidavit was executed and notarized.
However, failure of the affidavit to show where the oath or
affirmation of the affiant was administered does not by itself
invalidate the affidavit. See County Bank v Jack (1906) 148 C 437,
440 (venue line omitted). The venue line or lines may, with equal
effect, be placed at the beginning of the jurat or notarys
certification.NOTE:For the footer requirements, see Cal Rules of Ct
2.110 and 12.22. 12.64b.Identity of DeclarantThe first paragraph of
the body of a declaration usually identifies the declarant by
stating his or her titleor relationship to the lawsuit. For
example:1. I am the plaintiff, _ _[name]_ _, in this action.1. I am
an attorney of record for defendant, _ _[name]_ _.1. I am, and have
been since _ _[date]_ _, the Vice President in charge of marketing
for defendant, _ _[name of, e.g., corporation]_ _.12.65c.Competence
of DeclarantGenerally, anyone who would be competent to testify as
a witness about a matter is competent to make a declaration. See
McLellan v McLellan(1972) 23 CA3d 343, 359. In this context,
competent usuallymeans that the declarant has personal knowledge of
the subject matter of the declaration (see Evid C 702) or that the
declarant qualifies as an expert on the subject matter of the
declaration (see Evid C 720, 801). On admissibility of matter
stated, see 12.68.In the second paragraph, many attorneys drafting
declarations routinely include a statement attesting to the
declarants personal knowledge, such as:2. I have personal knowledge
of all facts stated in this declaration and, if called as a
witness, I could and would testify competently to them under
oath.Such a statement is a conclusion that may be disregarded by a
judge who feels that personal knowledgemust be shown by factual
statements. See Fisher v Cheeseman(1968) 260 CA2d 503, 506 ([t]hat
which is required is not a sworn statement that the affiant would
so testify but a showing that he can competently do so). Thus, the
above statement is not a substitute for the inclusion of facts
showing that the declarant has personal knowledge of the facts
being sworn to. For example:3. I was at the corner of Fourth and
Main Streets on _ _[date]_ _, and saw _ _[specify]_ _.3. On _
_[date]_ _, I received a letter by _ _[name]_ _, a true and
complete copy of which is attached as Exhibit A.3. I am the
custodian of records for Mercy Hospital. 12.66(1)Declarations Made
On Information and BeliefA declarant, like a witness (see Evid C
702), should normally state only facts personally known to himor
her. The statute authorizing the order sought may also specify that
matter in declarations must be based on personal knowledge. See,
e.g., CCP 437c (declarations on motion for summary judgment). Thus,
a statement made on information and belief may be disregarded
(Franklin v Nat C. Goldstone Agency(1949) 33 C2d 628, 631; Judd v
Superior Court(1976) 60 CA3d 38, 43) unless the fact stated is one
that by its nature could not be known directly and positively
(e.g., anothers intent). See Brown vHappy Valley Fruit Growers,
Inc. (1929) 206 C 515, 520; Fielder v Superior Court(1963) 213 CA2d
60. Statements made in declarations are presumed to be made on
personal knowledge unless it is stated that they are made on
information and belief. Weathers v Kaiser Found. Hosps. (1971) 5
C3d 98, 106. 12.67(2)Expert DeclarationsA declaration based on
expert opinion should include information about the experts
qualifications to make a showing that the declarant is competent to
express an opinion about the subject matter of the declaration.
12.685.Admissibility of Matters StatedThe body of a declaration is
a series of statements, usually set out in separately numbered
paragraphs. The judge hearing the motion may decline to consider
statements in a declaration on the same grounds that a trial judge
would sustain an objection to proffered testimony. See McLellan v
McLellan(1972) 23CA3d 343, 359; Mayo v Beber(1960) 177 CA2d 544,
551. Filing a declaration in support of a motion is normally the
equivalent of offering it in evidence; it need not be offered
formally in evidence at the hearing. See Waller v Waller(1970) 3
CA3d 456, 465.Declarations should state evidentiary facts rather
than ultimate facts or legal conclusions. Ware v Stafford(1962) 206
CA2d 232, 237. The facts should be set forth positively; a
declaration that states only the conclusions or opinions of the
declarant is insufficient. See Tri-State Mfg. Co. v Superior
Court(1964) 224 CA2d 442, 445. One test for whether a statement in
a declaration should be considered is whether a perjury prosecution
could be based on the statement if it were false. See Mack v
Superior Court(1968) 259 CA2d 7, 10.PRACTICE TIP:An attorney
drafting a declaration should consider not only the admissibility
and persuasiveness of what is said, but also that the declaration
may be used to cross-examine the declarant at a later deposition or
at trial. The declaration must state enough factual matter to be
persuasive in support of the motion, but it should not be
repetitive or contain unnecessary detail.12.69a.Statements of
OpinionOpinions stated in a declaration are sometimes considered
when the declaration shows that The opinion is rationally based on
the declarants perception and is helpful to a clear understanding
of his or her testimony (see Evid C 800); or The declarant is
qualified to testify as an expert on the subject (see Evid C 801).
12.70b.Hearsay StatementsHearsay statements may be disregarded
unless admissible under an exception to the hearsay rule. See
Pacific Air Lines, Inc. v Superior Court(1965) 231 CA2d 587. See
also Weathers v Kaiser Found. Hosps.(1971) 5 C3d 98, 106 (although
declarants statement might have been based on hearsay, it might
also have been based on observation and, thus, could be considered
under the presumption that itwas made on personal knowledge).
12.716.SubscriptionThe proper subscription for a declaration or
affidavit is important because the court will disregard an
incorrectly executed declaration or affidavit.12.72a.Declaration
Under Penalty of PerjuryA declaration under penalty of perjury must
be signed by the declarant and certified or declared to be true
under penalty of perjury. CCP 2015.5. It is improper for an
attorney to sign declarations under penalty of perjury on behalf of
his or her clients or witnesses, even in family law court. Marriage
of Reese & Guy(1999) 73 CA4th 1214, 1222. The certification or
declaration may be in substantially the following form (CCP
2015.5):I declare under penalty of perjury under the laws of the
State of California that the foregoing is true andcorrect.PRACTICE
TIP:Either certify or declare can be used, but not both. See CCP
2015.5. Most attorneys use declare unless a particular statute
calls for a certification or the paper is called a certificate.
Other attorneys use certify when the declaration is signed by an
attorney or court official. The phrase under the laws of the State
of California can be omitted if the declaration is executed within
California and the place of execution is stated.This statement is
normally placed at the end of the declaration. See People v
Pierce(1967) 66 C2d 53, 59 (end is preferred, not required). A
statement declared to be made under penalty of perjury is
acceptable even though true and correct has been omitted. See
Pacific Air Lines, Inc. v Superior Court(1965) 231 CA2d 587. See
also People v Pacific Land Research Co. (1977) 20 C3d 10, 21 n11
(declaration did not state place of execution or that it was made
under penalty of perjury; address and signature sufficient to
constitute compliance); People v Resolute Ins. Co. (1975) 46 CA3d
249, 256 (declaration missing date and place of execution
sufficient when attached document contained date and place of
execution). 12.73(1)Writing RequirementThe statement must be in
writing, because subscribe as used in CCP 2015.5 means to sign with
ones own hand. Thus, when a transcript of a telephone conversation
with various witnesses was submitted, even though the witnesses
said that their statements were true and correct under penalty of
perjury, there was no compliance with 2015.5, and the transcripts
were inadmissible as evidence. Stockinger v Feather River Community
College(2003) 111 CA4th 1014, 1026. 12.74(2)Date of ExecutionThe
date of execution must be stated. CCP 2015.5; People v United
Bonding Ins. Co. (1969) 272 CA2d 441, 444. The court must disregard
a declaration that lacks the required formalities (Baron v
Mare(1975) 47 CA3d 304, 308) or when it is patently untrue (Krueger
v Superior Court(1979) 89 CA3d 934, 939 (declaration predated
matter verified)). IV. SUPPORTING DOCUMENTS A. Memorandum in
Support of Motion12.441.When Supporting Memorandum RequiredAll
motions and demurrers must be supported by a memorandum that
complies with Cal Rules of Ct 3.1113. Cal Rules of Ct 3.1112(a),
3.1113. A demurrer or written notice of motion under CCP 1005,
except for a motion listed in Cal Rules of Ct 3.1114, must be
accompanied by supporting memorandum. Cal Rules of Ct 3.1113(a). On
motions not requiring a supporting memorandum, see 12.45. The
absence of the memorandum may be construed by the court as an
admission that the motion or special demurrer is not meritorious
and cause for its denial and, in the case of a demurrer, as a
waiver of all grounds not supported. Cal Rules of Ct
3.1113(a).PRACTICE TIP:The supporting memorandum is used to
convince the judge who hears the motion that the law and facts
support issuance of the order sought. Persuasion is the object of
the memorandum. Even though counsel may have a chance to present
argument and cite authorities at the hearing on the motion (see
12.9712.122), some courts issue a tentative ruling based on the
motion and response papers alone (see 12.12412.130), and in other
courts the judge will come to the hearing with a ruling already in
mind. The written memorandum should be the best argument for the
motion that can be made; only in rare and unusual situations should
a persuasive argument or point be held back for later use. 3.
Selecting Declarant12.61a.Tactical ConsiderationsThe attorney must
make tactical decisions in determining who should submit a
declaration in support ofa motion or how many declarations to
submit. If a factual point needs to be established, it must, of
course, be established by someone with sufficient personal
knowledge that the declaration statements are competent evidence.
See 12.65. The declarant who is in a position to verify or present
the fact willprobably be the most persuasive, and if several facts
are to be presented, it is usually advantageous and more efficient
to have those facts addressed by as few witnesses as possible.There
are, however, significant differences between trial testimony and
fact finding through declarations. Declarations may be carefully
drafted by counsel, whereas trial testimony tends to be spontaneous
in its wording and depends on the witnesss particular personality,
linguistic skills, and state of mind. Furthermore, a declarant in a
written declaration will not ordinarily be able to be
cross-examined on what is included in the declaration prior to the
hearing on the motion.12.75b.AffidavitAn affidavit is a written
declaration under oath, made without notice to the adverse party.
CCP 2003. It is customary for the affiant to sign an affidavit, but
an affidavit with a proper jurat is sufficient without the affiants
signature unless a particular statute or rule requires a signed
affidavit. City of Petaluma v White (1907) 152 C 190, 195; Dodge v
Free(1973) 32 CA3d 436, 443.The jurat of an affidavit is a
certificate stating when, where, and before whom the affidavit was
sworn or affirmed. See CCP 20932094. A statement without a jurat is
not sufficient to serve as an affidavit. People v United Bonding
Ins. Co. (1969) 272 CA2d 441, 443. The jurat may take different
forms in other states or if made by an officer other than a notary
public. Code of Civil Procedure 20122015 specify the persons and
officers in California (any officer authorized to administer oaths)
and elsewhere who may certify affidavits.A notarys seal stamped
near his or her signature should indicate the county in which the
notarys oath of office is filed, the county in which the notarys
bond is filed, and the date on which the notarys commission
expires. See Govt C 8207. However, an otherwise sufficient
affidavit may be valid without the seal. See Reclamation Dist. v
Snowball (1911) 160 C 695.12.76C.Pleadings and Papers on
FilePleadings and papers on file in the action are before the judge
(at least if referred to in the notice of motion) and may be
referred to in the memorandum and declarations. Even though the
clerks file of the case will be given to the judge hearing the
motion, counsel should attach a copy of the pertinent papers to the
motion papers for the convenience of the judge. Any paper
previously filed must be referred to by title and date of
execution. See Cal Rules of Ct 3.1110(d).That a matter is stated in
a pleading or paper in the court file does not, by itself,
necessarily satisfy applicable evidentiary requirements. For
instance, if the intent is to prove the truth of a fact included in
the allegations of a pleading, the pleading must have been verified
and the allegations must be in the form of evidentiary facts rather
than ultimate facts or conclusions. See Continental Baking Co. v
Katz(1968) 68 C2d 512, 532.12.77D.Documentary Evidence in Support
of MotionContracts, letters, business records, and other documents
can be used to support a motion. Counsel should either Obtain the
agreement of adverse counsel that the document (or a copy) may be
used; or Include in supporting declarations authenticating
statements that permit the documents admission in evidence over
objections to authentication (see Evid C 1400), secondary
evidence(see Evid C 1521), and hearsay (see Evid C 1200). See Dugar
v Happy Tiger Records, Inc. (1974) 41 CA3d 811, 815. The
declaration that authenticates a document may also incorporate it
by reference, for example:On _ _[date]_ _, I entered into a written
agreement with _ _[name]_ _. A true and correct copy of that
agreement, marked Exhibit A, is attached to this declaration and
incorporated by reference.If a document is offered to prove the
truth of matters stated in it, the document is hearsay evidence
(see Evid C 1200) and the declaration that accompanies it should
contain statements that establish its admissibility under one of
the exceptions to the hearsay rule (see Evid C 12201350). A
document offered only to show its existence and terms is not
subject to a hearsay objection.Some motions must be accompanied by
particular filings, as specified by statute or the California
Rulesof Court. For example, certain discovery motions must be
accompanied by a separate paper listing the discovery requests,
responses, and reasons for compelling further response. Other
documents relied on must be summarized. Cal Rules of Ct 3.1020.
12.78E.Attached ExhibitsExhibits must be separated by a hard 8 by
11 inch sheet with tabs bearing the exhibit designation that extend
below the bottom of the page. Pages from a single deposition and
any associated exhibits must be designated as a single exhibit. An
index to the exhibits must be included. Cal Rules of Ct
3.1110(f).Exhibits may be fastened to pages of the specified size
and, when prepared by a machine copying process, must be equal to
typewritten material in legibility and permanency of image. Cal
Rules of Ct 2.114.All references to exhibits or declarations in
supporting or opposing papers must reference the number or letter
of the exhibit, and, if appropriate, the paragraph or line number.
Cal Rules of Ct 3.1113(k). 12.791.Materials Lodged With
ClerkMaterials lodged with the clerk should be accompanied by a
return envelope (addressed and stamped) so that the material can be
mailed back after the motion is decided. Cal Rules of Ct 3.1302(b).
Some local rules provide for the use of attorney pick-up services
for lodged materials as an alternative to providing a return
envelope. See, e.g., Los Angeles Ct R 3.4(b).12.802.Use of CopiesIf
an original document is required, copies of the documents may be
used and identified in declarations,and the originals brought to
court at the time of the hearing.If the original is needed and if
the document is in the hands of an adverse party, a notice or
subpoena directing its production at the hearing can be served with
the motion papers. CCP 1987(b)(c).The secondary evidence rule
provides that the content of a writing may be proved by otherwise
admissible secondary evidence unless: A genuine dispute exists
regarding material terms of the writing and justice requires
exclusion; or Admission would be unfair. NOTE:Evid C 1521. See also
Evid C 12701272. The secondary evidence rule applies to evidence
offered in motion proceedings.Counsel should also remember that if
the existence of the document, rather than the truth of its
contents, is what is being proven, there is not a hearsay problem
as to the contents. See, e.g., Evid C 1200. 12.81F.Requests for
Judicial NoticeA moving party may ask that judicial notice be taken
of facts that support a motion. See Parker v Twentieth Century-Fox
Film Corp. (1970) 3 C3d 176, 181 (motion for summary judgment).
Judicial notice of the matters specified in Evid C 451 is
mandatory; although judicial notice of the matters listed in Evid C
452 is designated permissive, Evid C 453 states that the court
shall take judicial notice of matters listed in 452 if a party
requests it. A request for judicial notice must be made in a
separate document listing the specific items for which notice is
requested and must comply with Cal Rules of Ct 3.1306(c) and Evid C
453. See Cal Rules of Ct 3.1113(l). Local court rules may also
prescribe procedures for requesting judicial notice. See, e.g., Los
Angeles Ct R 3.8. On judicial notice generally, see California
Trial Practice: Civil Procedure During Trial, chap 14 (3d ed Cal
CEB).PRACTICE TIP:It is good practice to submit a request for
judicial notice under Evid C 453 as to both the mandatory matters
listed in Evid C 451 and the permissive matters listed in Evid C
452.Copies of the records or documents to be noticed must be
provided to the court and to each party and should be attached to
the request. Cal Rules of Ct 3.1306(c). If the material is part of
the court file, the moving party must specify in writing the part
of the court file of which notice is requested and arrange to have
the file in the courtroom at the time of the hearing. Cal Rules of
Ct 3.1306(c).NOTE:For some motions, e.g., a motion to strike, the
request for judicial notice must be raised in the notice of motion
or in the supporting memorandum. See CCP 437(b). V. SERVICE AND
FILING12.82A.Proof of ServiceThe last paper in the group of papers
served and filed to initiate a motion is normally a proof of
service form. Motion papers are often served by mail (CCP 1012,
1013(a); see 12.84), and a proof of service by mail form can be
completed (but not signed) before the papers are mailed and filed
(CCP 1013a; see 18.4218.43 (discussion), 18.4518.49 (forms)). A
conformed copy of the proof of service form is attached to each set
of copies of the motion papers served.On service and filing of the
papers generally, see chap 18.12.831.Whom to ServeAll parties to
the action should be served with the motion papers. See CCP
10101020. The attorney for the plaintiff named first in the
complaint must maintain and make available a list of all parties
and the addresses at which they may be served. Cal Rules of Ct
3.254.12.842.Service by MailService of papers by mail may be made
where there is regular mail service available. CCP 1012. Service by
mail can be made by a person who is (CCP 1013a(3)) A resident of,
or employed in, the county where the mailing occurs; Over the age
of 18 and not a party to the lawsuit; and Readily familiar with the
collection and processing of correspondence for mailing. Papers are
served by that person placing them in a sealed, addressed, and
stamped envelope, and depositing it with the United States Postal
Service or by placing that sealed envelope for collection and
mailing in accordance with ordinary business practices. CCP
1013a(3). On service by mail and express mail, see 18.818.12.As a
matter of courtesy, mailing should be made in a timely fashion and
delivered without undue delay.Moreover, service is presumed invalid
if the postal cancellation date or postage meter date is more than1
day after the date of the deposit for mailing stated on the proof
of service. CCP 1013a(3).Service is complete at the time of the
deposit of the papers (CCP 1013(a)), but any prescribed time that
depends upon the date of such service (e.g., a notice period) is
extended (CCP 1005(b)) 5 calendar days for service by mail if the
place of address and place of mailing is in California; 10 calendar
days if either the place of mailing or place of address is outside
California but within the United States; and 20 calendar days if
either the place of mailing or the place of address is outside the
United States. The declarant may sign the proof of service by mail
only after the envelopes have been sealed and are on their way. See
CCP 1013a(3). Thus, a copy of the proof of service actually served
on other parties should not include the signature of th