Transcript Document 7268963

Law & Motion
for Self Help Centers
Monica Mitchell
Superior Court, County of San Bernardino -- Supervising Attorney, Self Help Services
Jodi Prior
Superior Court, County of Ventura -- Senior Court Attorney, Self-Help Legal Access Center
Larry Meyer
Law Library for San Bernardino County -- Director
Today’s Entertainment . . .

Part 1: Understanding law & motion

Part 2: Using your new law & motion skills in your
self help center
Objectives
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

Understand principles
of law & motion
Know where to look
for information needed
Obtain tools &
adaptable content to
assist self represented
litigants
Newton’s 1st Law of Motion

Definition 1: First law
of motion

Unless acted upon by
a net external force, a
body, at rest, will
remain at rest and a
body, in motion, will
remain in motion.
What is “law & motion”?


law and motion calendar n. a court calendar in
which only motions and special legal arguments are
heard [legal.dictionary.thefreedictionary.com]
law and motion calendar

A description of the kinds of legal matters a particular
judge or courtroom will hear that day, week, or any other
block of time. The law and motion calendar consists of
pretrial motions (such as a motion to compel the other
side in a civil case to answer discovery requests) or other
legal requests [Nolo.com]
Motions by the “Rules”
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California Rules of Court
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Rules beginning with Rule “3.” – about motions
Rules beginning with Rule “2.” – about format
Code of Civil Procedure
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General info:
§1005
Check statutes for specific motions
“Motion” Defined, CRC 3.1112
#1 Notice of Hearing
#2 Motion
#3 Memorandum of Points & Authorities
#4 Order lodged (check county) – served with
moving papers but not attached to them (CRC
3.1113(n).
#1 Notice of Hearing
Required Items in Notice

California Rules of Court, CRC 3.1110
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1st paragraph of notice must state the nature of the
order being sought and the grounds for issuance
of the order
1st page must state
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date/time/location
Title of all attached documents (other than exhibits)
Date of filing of action
Trial date, if set
How Much Notice is Needed?

Written notice for motions – CCP §1005
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Moving papers served & filed at least 16 court
days before the hearing
If motion served by mail, then 16 court days
extended -- by 5 calendar days if mailed to place
in CA; 10 calendar days if out of state; or 20
calendar days if out of the US
If motion served by fax, express mail or overnight
delivery, add 2 calendar days to 16 court days
Quick Tip: Special Timing

UD motions

Motion to Quash Service or Stay or Dismiss
Action – defendant’s motion is heard not less than
3 days but no more than 7 days after filing the
notice
Quick Tip: Special Timing

Summary Judgments,
CCP §437c
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Can’t file motion until
60 days after other
party has made general
appearance
Served 75 days prior to
hearing (add extra time
for mailing or
fax/overnight)
Must be heard no later
than 30 days prior to
trial
Quick Tip: Special Timing

Discovery Motions

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Motions concerning discovery issues must be
heard prior to 15th day case is initially set for trial
(CCP §2024.020)
Motions regarding expert witnesses must be
heard on or before the 10th day before the initial
trial date (CCP §2024.030)
Can file motion to extend the cut-off (CCP
§2024.050)
What About Ex Partes?


Must notify all parties no later than 10am the
court day before the ex parte appearance,
absent a showing of exceptional
circumstances to justify a shorter time for
notice. (CRC 3.1203)
UD ex partes – can be shorter, but must be
reasonable amount of notice. (CRC 3.1203(b))
Ex Parte or . . . “OST”
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When the court will not rule on the merits of
the motion on an ex parte basis
Court may, by application or on own motion,
set a shorter time for filing and service of
papers beyond the regular time
“Ex Parte Application for Order Shortening
Time for Service of Notice of Motion”
#2
Motion
Required Elements of “Motion”
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Must identify the party (parties) bringing the
motion
Identify party to whom motion is addressed
Briefly state the basis for the motion and
relief sought
If a pleading at issue, state which one (i.e.,
Demurrer to 2nd Amended Complaint)
CRC 3.1112
#3
Memorandum of Points &
Authorities
Points & Authorities
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
The court may construe the absence of Ps&As
as an admission that the motion is not
meritorious and cause for its denial. (CRC
3.113)
Required elements within 15 page limit:

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Statement of facts
Concise statement of law
Evidence & arguments relied on
Discussion of law cited
MEMORANDUM OF POINTS & AUTHORITIES
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IN SUPPORT OF MOTION TO SET ASIDE DEFAULT
Code of Civil Procedure Section 473.5 allows a Court to set aside a default
judgment when service of a summons has not resulted in actual notice to a party in
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time to defend the action. This type of motion shall be served and filed within a
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Generic
Points &
Authorities
reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a
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default judgment against him or her; or (ii) 180 days after service on him or her of a
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written notice that the default or default judgment has been entered. (Code Civ. Proc.,
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§473.5(a).)
The Motion “shall be accompanied by an affidavit showing under oath that the
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party's lack of actual notice in time to defend the action was not caused by his or her
avoidance of service or inexcusable neglect. The party shall serve and file with the
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notice a copy of the answer, motion, or other pleading proposed to be filed in the
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action.” (Code Civ. Proc., §473.5(b).)
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Here, the Respondent requests that the Court set aside the default and default
judgment entered, and allow the filing of the Response. As explained in the attached
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declaration, Respondent was unable to defend the case due to lack of service.
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Contrary to the Proof of Service of Summons filed in this action, Respondent was not
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served. (See Declaration) Respondent would like the opportunity to have all the
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issues decided with the Court’s assistance.
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Date __________________
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______________________________
Respondent’s Signature
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Memorandum of Points & Authorities
Opposing Ps & As
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Name: ___________________
Address: _________________
_________________
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Here, as explained in the attached declaration, the moving party fails to meet the
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burden of proof because: [check all that apply]
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3
1)
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default under Code of Civil Procedure Section 473(b) must be reasonable. (Cyrus v.
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Haveson (1976) 65 Cal. App. 3d 306, 315.)
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taken against a party through his or her mistake, inadvertence, surprise, or
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excusable neglect must be made within a reasonable time, not exceeding six
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months, after the judgment, dismissal, order, or proceeding was taken. (Code Civ.
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Telephone: ________________
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN BERNARDINO
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DISTRICT
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,
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Petitioner
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v
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,
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Respondent
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:
:
:
:
:
:
:
:
:
:
:
:
Case NO.
OPPOSITION TO MOTION TO SET ASIDE THE
;
Declaration of __________________.
DATE:
TIME:
DEPT
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The Court should deny the motion to set aside because this motion is not supported
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by any sufficient ground under Code of Civil Procedure Section 473(b), and therefore the
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Court has no discretion to grant relief.
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A motion under Code of Civil Procedure Section 473(b) is addressed to the sound
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discretion of the trial court. (Iott v. Franklin (1988) 206 Cal. App. 3d 521, 527). If the
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moving party fails to show that a judgment has been taken against him or her through
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mistake, inadvertence, surprise, or excusable neglect, the court may not grant relief; it has
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no discretion in the matter ( Id. at 528.)
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2)
An application for relief from a judgment, dismissal, order, or other proceeding
Proc., §473(b).)
3)
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Mere mistake, inadvertence, or neglect does not warrant relief under Code of
Civil Procedure Section 473(b) unless, on a consideration of all the evidence, it is
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The mistake, inadvertence, or surprise that justifies a court in setting aside a
found to be excusable. (Martin v. Taylor (1968) 267 Cal.App.2d 112, 113.)
4)
____ Other legal reason: __________________________________________________________
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__________________________________________________________________________________
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__________________________________________________________________________________
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__________________________________________________________________________________.
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Respectfully,
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Dated:
[signature]
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[print name]
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Opposition to Motion to Set Aside - 1
Opposition to Motion to Set Aside - 2
Getting a Hearing Date
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Reserving dates
Finalizing
Service
Responding to the motion
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Timing
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Opposition – 9 court
days; Reply – 5 court
days
CCP §1005(b)
Short service deadline,
watch service delivery.
CCP §1005(c) –
reasonably calculated for
delivery close of business day
after due date
What else do you need to know?
Testimony at Hearings
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Evidence restricted to declaration or Request
for Judicial Notice, unless court orders
otherwise for good cause. (CRC 3.1306(a).
A person seeking to present oral evidence at
the hearing must file no later than 3 court days
prior to the hearing a written statement setting
forth nature and extent of proposed oral
evidence. (CRC 3.1306(b))
Formatting Rules
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Specific items in California Rules of Court (see
handout)
Check your county for acceptability – are your
clerks looking for “perfect”?
Looking at specific motions . . .
Unlawful Detainer Set Aside Motion
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Ventura’s form
Results in Ventura
Results in other
counties?
Motions to Assist with Collection
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Motion for Payment of
Judgment by
Installments
Motion in Limine to
Exclude Evidence
Notice of Motion and
Motion for Assignment
Order
A Tale of Two Motions
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Guardianship Motions for Visitation
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Probate Code 1602 provides for former guardian
visitation; use Petition for Termination of Guardianship
Judicial Council Form
 See CRC 7.1008 when visitation not ordered at
termination
Parental Visits --No Probate Code or CRC available for
guidance
Ventura & San Bernardino’s solutions
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number and address):
TELEPHONE NO.:
E-MAIL ADDRESS (Optional):
ATTORNEY FOR (Name):
FOR COURT USE ONLY
FAX NO. (Optional):
SUPERIOR COURT OF CALIFORNIA COUNTY OF
STREET ADDRESS:
MAILING ADDRESS:
CITY AND ZIP CODE:
BRANCH NAME:
GUARDIANSHIP OF THE:

PERSON OF
CASE NUMBER:
(Name(s)):
HEARING DATE AND TIME:
DEPT:
PETITION FOR VISITATION
1. I am related to the child as the (check one):
 Mother  Father  Stepparent
 Grandparent
 Other relative  Friend
2. I believe that visitation between myself and the minor(s) is in the best interests of the minor
because:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
3. My previous contact with the minor(s) are as follows:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
4. I request the Court order visitation between myself and the minor(s). I would like to have visitation
as follows: _____________________________________________________________________
______________________________________________________________________________
5. The reason I have not been able to reach an agreement with the guardian/proposed guardian over
visitation is: ____________________________________________________________________
______________________________________________________________________________
I declare under penalty of perjury of the laws of the State of California that the foregoing is true
and correct of my own knowledge.
Dated:
Discovery Motions

ATTORNEY OR PARTY WITHOUT ATTORNEY (Name and Address)
ATTORNEY FOR (Name):

PLAINTIFF
Telephone Number

DEFENDANT

800 SOUTH VICTORIA AVE. VENTURA, CA 93009

3855 – F ALAMO ST. SIMI VALLEY, CA 93063-2110

SELF-REPRESENTED

SUPERIOR COURT OF CALIFORNIA, COUNTY OF VENTURA
FOR COURT USE ONLY
Limited Civil Case
PLAINTIFF/PETITIONER
DEFENDANT/RESPONDENT
NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO
INTERROGATORIES
Hearing Date:
Time:
CASE NUMBER:
Courtroom:
TO: _____________________________ AND TO ANY ATTORNEY OF RECORD.
NOTICE IS HEREBY GIVEN that at the date, time and place above, ____________________, will
move the court for an order compelling _________________ to respond to Special / Form Interrogatories, Set
Number ____ and that monetary sanctions be imposed against _________________.
This Motion is made pursuant to California Code of Civil Procedure §2030.290 on the grounds that
_______________________ has failed to respond to the Special / Form Interrogatories, Set Number ____
which were served on ________________________.
This Motion will be based upon this Notice, the Memorandum of Points and Authorities, Declaration,
and the Exhibits attached and the complete files and records in this action, together with such oral argument as
the Court may permit at the time of the hearing.
MEMORANDUM OF POINTS & AUTHORITIES
On ________________________, Special / Form Interrogatories, Set Number ___ were served on
______________________. (A true and correct copy of the Interrogatories are attached as Exhibit “A” to the
attached Declaration.)
Family Law -- Visitation
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Petition for Family
Visitation
Petition for
Grandparent Visitation
How can you use this information at
your self help center?
Ways to Use this Info . . .
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Take advantage of our efforts
Instruct litigants about what to look for at the
law library
Craft your own motions
Create new handouts
“Do It Yourself” Ideas
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How to make a generic
“form”
Document principles
Does it need to be a
“local form”
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Submission protocol of
your county
Advance planning –
might need to submit 4
to 6 months before next
rules cycle
Secrets of the Law Librarians
Law Library Basics . . .
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Each County has a county Law Library
Various size and quality of resources
Located in or near Courthouses
Resources at the law library
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Most include self-help material to more
advanced treatises (many SRLs do master
advance material)
Staff trained to assist in finding material, not
provide legal advice. Research guides
May help alleviate some of the pressure on
your resources
Any Questions?