When a party or attorney is confronted by a motion by the opposing party or opposing counsel, the primary focus is usually on what they are attempting to accomplish. And that is absolutely appropriate – what if upon review you determine that your client does not oppose or actually agrees with what the other side seeks to do! However, often times, that initial, primary focus drives the attorney or party to start concocting substantive reasons for not granting the motion.
This could result in an attorney or party missing a large list of potential, non-substantive reasons for denying the motion. Those are reasons that are grounded in procedural failings by the party or attorney bringing the motion. Among the grounds for opposing a motion is that the moving party failed to meet the procedural requirements in filing the motion. Thus, in determining whether to oppose a motion on that ground, the following questions must be considered – and considered just as equally as substantive arguments:
- Does the motion meet formatting requirements? Local rules? Is it signed? Does it exceed page limits?
- Was the motion served and filed at the appropriate time? Did the moving party meet the specific requirements in the Code of Civil Procedure or in the Rules of Court that limit the time within which the particular motion must be brought? The terms of any case management order should be checked to see if there are limitations expressed there. See Cal Rules of Ct 3.728.
- Did the opposing party or counsel meet-and-confer? Was there a meet-and-confer requirement for the underlying motion?
- Has service been made in a timely and proper fashion? If there is an applicable minimum or maximum time for notice, have those requirements been met?
- Does the notice list all forms of relief being sought in the prayer or body of the motion?
- Is there a memorandum in support of the motion as required by Cal Rules of Ct 3.1112(a) and 3.1113?
- If required, has evidentiary support for the motion been provided, such as a declaration? If seeking to use outside authorities, has the motion been coupled with an appropriate request for judicial notice?
- Are there any other special requirements in the Code of Civil Procedure or in any other applicable statute or rule that must be met?
When such a procedural defect appears in the motion papers, before spending the time and effort for further research or to prepare opposition papers on that basis, counsel should consult with the court clerk to learn whether the motion papers have been accepted for filing and whether the hearing has actually been scheduled. Depending on the type of defect, motion papers may be refused for filing altogether or the hearing may simply not be scheduled. If so, there may be no danger of the motion being granted and ordinarily nothing further need be done.
If the motion may be heard and ruled on by a judge, however, then opposition papers must be filed. Any procedural defects in the motions can be addressed in the opposition papers.