CHAPTER 13 Copyright © 2007 Thomson Delmar Learning 13.1 Building Construction.
© 2005 by Thomson Delmar Learning. All Rights Reserved.1 CALIFORNIA CIVIL LITIGATION LAW AND...
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Transcript of © 2005 by Thomson Delmar Learning. All Rights Reserved.1 CALIFORNIA CIVIL LITIGATION LAW AND...
© 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