Filing an opposition to a motion in California is the topic of this blog post.
Filing a timely opposition to a motion in California is critical as in most cases if you do not file an opposition to a motion that may be construed by the Court as an admission that the motion has merit and should be granted.
Deadline for filing an opposition to a motion in California.
The opposition to a motion in California must be filed and served at least nine (9) Court days before the hearing unless the Judge has ordered otherwise. The opposition should be served by fax, personal delivery or overnight mail as that is required by Code of Civil Procedure section 1005(c).
Many judges will strictly enforce the requirement that the opposition be served on time, and in the correct manner.
The time limit does not apply to an opposition to a motion for summary judgment which must be filed and served at least fourteen (14) calendar days before the hearing, nor does it apply when a specific code section specifies a different time requirement, or where a judge has ordered otherwise.
Another reason why it is so important to file an opposition to a motion in California is the fact that if you do not file an opposition, the judge may refuse to permit oral argument against the motion. However if you can show good cause the judge may exercise their discretion and consider a request for a continuance to allow the filing of a written opposition. However as continuances are not favored you will have to show a valid reason for the failure to file or late filing of the opposition. And if the court grants a continuance, the court may require you to pay fees for the appearance incurred by other parties.
What should be included in an opposition to a motion in California.
The opposition to a motion in California should contain a memorandum of points and authorities citing the reasons that the motion should not be granted, along with citations to the case law and statutory authority that supports the opposition, a declaration or declarations should also be included whenever appropriate. Failure to support the contentions of your opposition with a good argument and citations to authority may result in the unsupported contentions being considered waived by the court.
An experienced civil litigation attorney can review the motion and determine what grounds exist for filing an opposition as well as drafting a powerful opposition to the motion including a memorandum of points and authorities including a strong argument and citations to case law and statutory authority.
“Contentions are waived when a party fails to support them with reasoned argument and citations to authority.” Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal. App. 4th 1210, 1215.
An opposition to a motion in California cannot exceed 15 pages, except in opposition to a summary judgment motion. If the memorandum of points and authorities exceeds 10 pages a table of contents and table of authorities must be included.
The page limit does not include exhibits, declarations, attachments, table of contents, table of authorities, or the proof of service. A party may apply ex-parte to the court at least 24 hours before the memorandum is due for permission to file a longer memorandum but must state the reasons why the argument cannot be made within the stated limit. See California Rule of Court 3.1113.
Judges usually decide motions based on evidence presented in the form of affidavits or declarations, rather than oral testimony.
However, the court has discretion to receive oral testimony, as well as exclude it. There are situations in which the judge may, in the exercise of such discretion, decide to hear witnesses or to allow cross-examination of a declarant. See Rosenthal v. Great Western Fin’l Secur. Corp. (1996) 14 Cal. 4th 394, 414.
At least 3 days before the hearing, the party requesting leave to introduce oral testimony must file a statement as to the nature and extent of the proposed testimony, and a reasonable time estimate for the hearing. See California Rule of Court 3.1306(b).
Court must consider request for oral testimony: The judge may not adopt a policy of outright refusal to consider oral testimony on a motion hearing. Rather, if requested by either party, the judge must exercise his or her discretion as to whether oral testimony would be necessary or helpful to the decision of the matter. See Reifler v. Sup.Ct. (1974) 39 Cal.App. 3d 479, 485.
If you have been served with a motion and you want to file an opposition you should contact an experienced civil litigation attorney as soon as possible .
Schedule a free consultation today.
Call (800) 691-2721 and let’s talk about your options.
CONTACT INFORMATION FOR NATHAN MUBASHER:
Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.