Motion Practice

• Author: Robert F. Kane/Donald G. Rez
• Pages: 827-874

Chapter 14

Motion Practice

QUICK VIEW

Definition: A motion is an application to a court for an order granting some form of relief such as requiring a party

or nonparty to act or forbear from acting in a certain way. A noticed motion is made when the notice of motion

or order to show cause is served on the opposing party. An ex parte motion is made without notice or without

complete notice to the other parties.

Scope of Chapter: General principles applicable to motions; formal requirements, requirements for motion

papers including notice, motion, and memorandum of authorities; evidence supporting motions; service and filing;

opposition and replies; hearings and orders; reconsideration; and ex parte motions.

Strategies and Tactics:

• Prepare motions and supporting materials carefully so that a busy judge quickly understands why relief

should be granted or denied.

• However, recognize that many motions, and particularly dispositive motions, are decided on the papers,

with benefit of only brief, if any, oral argument. Include all arguments, exhibits, and key authorities in the

motion papers.

• Observe the formalities of motion practice to avoid delay and extraneous arguments about procedure.

When making a motion, consider whether the subject of the motion is crucial to your case. If not, see if

you can work out the dispute with your adversary without making a motion.

Statutes and Rules: Motion practice is governed by CCP §§1003-1008, 1010-1020; CRC 2.100-2.119, 2.200,

3.350, 3.1000-3.1153, 3.1200-3.1362, 3.1382-3.1384, 3.1390, 3.1804.

Related Topics: Attacking the Pleadings, Ch 15.

Forms: See digital access for the following forms:

• Form 14:10 Caption.

• Form 14:20 Notice of Motion.

• Form 14:30 Proof of Service by Mail.

• Form 14:40 Declaration of Service.

• Form 14:50 Notice of Temporary Unavailability of Counsel.

California Pretrial Practice & Forms 14-2

TABLE OF CONTENTS

I. OVERVIEW

§14:01 Purpose of Pretrial Motion Practice

§14:02 Definitions—Motion and Order

§14:03 A Motion Is Collateral to the Main Object of the Lawsuit

§14:04 Motion Made in Court Where Action Is Pending

§14:05 Motion Distinguished From Complaint

§14:06 Issuance of Written Order on Court’s Motion Is Granting of Motion

§14:07 Source of Law

§14:08 Legal Effect of Rules

§14:09 Use Informal Motions to Your Advantage

§14:10 Strategic Considerations; Should This Motion Be Filed?

II. PREPARING, SERVING, AND FILING MOTIONS

A. FORMAL REQUIREMENTS

§14:20 Notice and Motion Must Be in Writing, Filed, and Served

§14:21 Recycled Paper Required

§14:22 Paper and Print Requirements

§14:23 Line Spacing and Numbering

§14:24 Numbering, Binding, and Holes

§14:25 Footer

§14:26 Format of the First Page

§14:27 Fax Number and E-Mail Address

§14:28 Short Caption

§14:29 Lack of Title Not Fatal

§14:30 Binding of Papers

§14:31 Exhibits

§14:32 Reference to Other Papers Filed

§14:33 Changes Must Be Initialed

§14:34 Conformance of Service Copies

§14:35 Acceptance for Filing

§14:36 Signature Requirement

§14:37 Effect of Signature

B. MOTION

§14:49 Notice of Motion

§14:50 Papers Required to Support Motion

§14:51 Contents of a Motion

§14:52 Information Required in the First Page of Motion

§14:53 Attachments

§14:54 Proposed Order

§14:55 “Notice of Unavailability” of Counsel

C. NOTICE OF HEARING

§14:60 Written Notice Requirement

§14:61 Motion In Limine

§14:62 Actual Notice—Written Notice Still Required

§14:62.1 Waiver of Defects in Notice

§14:63 Notice to Defaulted Party or Party Who Has Not Appeared

§14:64 Contents of Notices

§14:65 Opening Paragraph

§14:66 Required Time for Motion

§14:67 Court May Shorten Time

§14:68 Computation of Time

14-3 Motion Practice

§14:69 Posting Schedule for Law and Motion Hearings

§14:70 Notify Court if Matter Not Heard

§14:71 Notification of Change of Address

D. ATTACHED EVIDENCE

1. Use of Evidence

§14:80 Most Motions Based on Evidence

§14:81 Evidence Must Be Admissible

§14:82 Evidence Must Be Filed With Motion

2. Requirements for Specific Evidence

a. Request for Judicial Notice

§14:90 Procedures for Requesting Judicial Notice

§14:91 Material in Court File in Case Being Heard

§14:92 Admissions in Pleadings

b. Declarations or Affidavits

§14:100 Use of Declarations or Affidavits

§14:101 Verified Pleading May Not Be Used

§14:102 Caption of Declarations or Affidavits

§14:103 Declaration Under Penalty of Perjury

c. Documentary Evidence

§14:110 Authenticating Documents

§14:111 Use of Copies

d. Discovery Documents

§14:120 Use of Discovery Documents

§14:121 Deposition Testimony as an Exhibit

§14:122 Lodging Discovery Documents

E. MEMORANDUM OF POINTS AND AUTHORITIES

1. Requirements

§14:130 Memorandum of Points and Authorities Required

§14:131 Contents

§14:132 Length of Memorandum

§14:133 Ex Parte Application to File Longer Memorandum

§14:134 Table of Contents and Authorities

§14:135 Pagination

§14:136 Required Style

§14:137 Case Citation Format

§14:138 Out of State or Prior to Publication Authority Must Be Available

§14:139 Required References to Exhibits or Declarations

§14:140 Unpublished Federal Authority

§14:141 Federal Authority as Binding or Persuasive

2. Drafting Considerations

§14:150 Be Concise

§14:151 Omit Boilerplate

§14:152 Summarize Your Argument

§14:153 Relate Facts to Argument

§14:154 Support Facts

§14:155 Citation Principles

§14:156 Minimize Rhetoric

§14:157 Avoid Personal Attacks

§14:158 Don’t Patronize the Court

F. SERVICE OF MOTION

1. Who and What to Serve

§14:170 What Must Be Served

§14:171 Who Must Be Served