Law & Motion for Self Help Centers

1. Law & Motionfor 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

2. Today’s Entertainment . . . • Part 1: Understanding law & motion • Part 2: Using your new law & motion skills in your self help center

3. Objectives • Understand principles of law & motion • Know where to look for information needed • Obtain tools & adaptable content to assist self represented litigants

4. 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.

5. 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]

6. 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

7. “Motion” Defined, CRC 3.1112 #1Notice of Hearing #2Motion #3Memorandum of Points & Authorities #4Order lodged (check county) – served with moving papers but not attached to them (CRC 3.1113(n).

8. #1 Notice of Hearing

9. 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

10. 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

11. 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

12. 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

13. 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)

14. 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))

15. 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”

16. #2Motion

17. 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

18. #3Memorandum of Points & Authorities

19. 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

20. Generic Points & Authorities

21. Opposing Ps & As

22. Getting a Hearing Date • Reserving dates • Finalizing • Service

23. 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

24. What else do you need to know?

25. 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))

26. Formatting Rules • Specific items in California Rules of Court (see handout) • Check your county for acceptability – are your clerks looking for “perfect”?

27. Looking at specific motions . . .

28. Unlawful Detainer Set Aside Motion • Ventura’s form • Results in Ventura • Results in other counties?

29. 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

30. 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

33. Discovery Motions

34. Family Law -- Visitation • Petition for Family Visitation • Petition for Grandparent Visitation

35. How can you use this information at your self help center?

36. 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

37. “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

38. Secrets of the Law Librarians

39. Law Library Basics . . . • Each County has a county Law Library • Various size and quality of resources • Located in or near Courthouses

40. 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

41. Any Questions?