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 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” California Rules of Court Rules beginning with Rule “3.” – about motions Rules beginning with Rule “2.” – about format Code of Civil Procedure 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 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 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 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 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 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” 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” 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 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: Statement of facts Concise statement of law Evidence & arguments relied on Discussion of law cited 1 MEMORANDUM OF POINTS & AUTHORITIES 2 IN SUPPORT OF MOTION TO SET ASIDE DEFAULT 3 Code of Civil Procedure Section 473.5 allows a Court to set aside a default 4 judgment when service of a summons has not resulted in actual notice to a party in 5 time to defend the action. This type of motion shall be served and filed within a 6 reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a 7 Generic 8 default judgment against him or her; or (ii) 180 days after service on him or her of a 9 written notice that the default or default judgment has been entered. (Code Civ. Proc., 10 §473.5(a).) 11 Points & The Motion “shall be accompanied by an affidavit showing under oath that the 12 party's lack of actual notice in time to defend the action was not caused by his or her 13 avoidance of service or inexcusable neglect. The party shall serve and file with the 14 Authorities 15 16 17 notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” (Code Civ. Proc., §473.5(b).) Here, the Respondent requests that the Court set aside the default and default 18 judgment entered, and allow the filing of the Response. As explained in the attached 19 declaration, Respondent was unable to defend the case due to lack of service. 20 21 Contrary to the Proof of Service of Summons filed in this action, Respondent was not 22 served. (See Declaration) Respondent would like the opportunity to have all the 23 issues decided with the Court’s assistance. 24 25 Date __________________ ______________________________ 26 Respondent’s Signature 27 28 Memorandum of Points & Authorities Opposing Ps & As 1 Name: ___________________ Address: _________________ 2 _________________ 1 Here, as explained in the attached declaration, the moving party fails to meet the 3 2 burden of proof because: [check all that apply] Telephone: ________________ 4 3 1) The mistake, inadvertence, or surprise that justifies a court in setting aside a 5 4 default under Code of Civil Procedure Section 473(b) must be reasonable. (Cyrus v. 6 5 Haveson (1976) 65 Cal. App. 3d 306, 315.) 7 6 2) An application for relief from a judgment, dismissal, order, or other proceeding 8 7 taken against a party through his or her mistake, inadvertence, surprise, or SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN BERNARDINO 9 8 excusable neglect must be made within a reasonable time, not exceeding six DISTRICT 10 9 months, after the judgment, dismissal, order, or proceeding was taken. (Code Civ. 11 10 Proc., §473(b).) : Case NO. 12 : 11 3) Mere mistake, inadvertence, or neglect does not warrant relief under Code of , : OPPOSITION TO MOTION TO SET ASIDE THE 13 : 12 Civil Procedure Section 473(b) unless, on a consideration of all the evidence, it is Petitioner : ; 14 : Declaration of __________________. 13 found to be excusable. (Martin v. Taylor (1968) 267 Cal.App.2d 112, 113.) v : 15 : DATE: 14 4) ____ Other legal reason: __________________________________________________________ , : TIME: 16 : DEPT 15 __________________________________________________________________________________ Respondent : 17 : 16 __________________________________________________________________________________ 18 17 __________________________________________________________________________________. The Court should deny the motion to set aside because this motion is not supported 19 18 Respectfully, by any sufficient ground under Code of Civil Procedure Section 473(b), and therefore the 20 19 Dated: [signature] Court has no discretion to grant relief. 21 20 [print name] A motion under Code of Civil Procedure Section 473(b) is addressed to the sound 22 21 discretion of the trial court. (Iott v. Franklin (1988) 206 Cal. App. 3d 521, 527). If the 23 22 moving party fails to show that a judgment has been taken against him or her through 24 23 mistake, inadvertence, surprise, or excusable neglect, the court may not grant relief; it has 25 24 no discretion in the matter ( Id. at 528.) 25 Opposition to Motion to Set Aside - 1 Opposition to Motion to Set Aside - 2 Getting a Hearing Date Reserving dates Finalizing Service Responding to the motion Timing 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 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 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 Ventura’s form Results in Ventura Results in other counties? Motions to Assist with Collection 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 Guardianship Motions for Visitation 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): FOR COURT USE ONLY TELEPHONE NO.: FAX NO. (Optional): E-MAIL ADDRESS (Optional): ATTORNEY FOR (Name): SUPERIOR COURT OF CALIFORNIA COUNTY OF STREET ADDRESS: MAILING ADDRESS: CITY AND ZIP CODE: BRANCH NAME: GUARDIANSHIP OF THE: PERSON OF (Name(s)): CASE NUMBER: 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) Telephone Number FOR COURT USE ONLY ATTORNEY FOR (Name): PLAINTIFF DEFENDANT SELF-REPRESENTED SUPERIOR COURT OF CALIFORNIA, COUNTY OF VENTURA Limited Civil Case 800 SOUTH VICTORIA AVE. VENTURA, CA 93009 3855 – F ALAMO ST. SIMI VALLEY, CA 93063-2110 PLAINTIFF/PETITIONER DEFENDANT/RESPONDENT CASE NUMBER: NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO INTERROGATORIES Hearing Date: Time: 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 Petition for Family Visitation Petition for Grandparent Visitation How can you use this information at your self help center? Ways to Use this Info . . . 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 How to make a generic “form” Document principles Does it need to be a “local form” 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 . . . Each County has a county Law Library Various size and quality of resources Located in or near Courthouses Resources at the law library 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?
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