Legal Question in Business Law in California

If the civil law defendant files a motion and calendars a hearing date, how many days does the defendant have thereafter to serve the plaintiff with the motion?

Asked on 4/18/13, 8:20 am

4 Answers from Attorneys

Charles Perry Law Offices of Charles R. Perry

It depends on what court you are in, and the type of motion being brought.

If you are in superior court, then most motions must be filed and served 16 court days before the hearing. Summary judgment motions in civil matters other than unlawful detainer, however, must be served and filed 75 days before the hearing. Note that "served" here means served by hand.

Federal courts have different time limits. You will need to look at the court's local rules to find out how much notice must be given.

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Answered on 4/18/13, 8:28 am

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Mr. Perry may be giving the right answer to the wrong question.

If I understand the question correctly, the answer is that the motion must be served (at least in the sense of being placed in the mail, addressed to the other parties or their attorneys of record) before it can be filed with the court clerk. The clerk won't accept a motion for filing unless there is a signed proof of service attached.

Consequently, it is usually necessary to obtain a hearing date from the court clerk before word-processing the final version of the motion and serving it........local rules vary, but in some counties you are allowed three days from getting the hearing date to having your motion on file and served.

Note that I am using the term "served" to mean "papers placed in the mail."

So, the answer to your question is "none" - service must precede, not follow, filing.

And, Mr. Perry is also right.

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Answered on 4/18/13, 8:49 am
Anthony Roach Law Office of Anthony A. Roach

I agree with Mr. Perry. In the Superior Courts in the State of California, general motions should be served and filed no later than 16 days prior to the court hearing on the motion. (Code Civ. Proc., sect. 1005, subd. (b).)

Some motions are governed by different timelines, such as motions for summary judgment - as Mr. Perry pointed out - or motions for a new trial.

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Answered on 4/18/13, 9:22 am
Edward Hoffman Law Offices of Edward A. Hoffman

I agree with the prior answers, but I'd like to clarify Mr. Whipple's. It is sometimes impractical -- or even impossible -- to get a hearing date before the papers are filed. That is true, for instance, of motions for judgment notwithstanding the verdict ("JNOV"), which *must* be filed without a hearing date. The clerk will then assign a date, at which point the moving party must give timely notice.

Some courts will file other motions without proofs of service, but the moving party will have to subsequently demonstrate that the motion was served properly and on time. That can be done in a separate proof of service, filed later.

As Mr. Perry notes, the deadline for serving the papers is calculated based upon the hearing date and not the date of filing.

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Answered on 4/18/13, 10:36 am

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