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Legal Motion Form - PowerPoint

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Legal Motion Form - PowerPoint Powered By Docstoc
					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?

				
DOCUMENT INFO
Description: Legal Motion Form document sample