A judgment debtor in a limited civil case can request an order allowing installment payments. This Step-by-Step guide explains how to do this, with sample forms.
Disclaimer: This guide is intended as general information only. Your case may have factors requiring different procedures or forms. If you need further assistance, consult a lawyer.
This packet includes:
■ Step by Step Instructions
■ Sample Notice of Motion and Motion to Pay Judgment in Installments Pursuant to CCP § 582.5; Points and Authorities; Declaration
■ Sample [Proposed] Order to Pay Judgment in Installments
Click here to download a PDF version of this guide with sample forms.
Click here to download a customizable Motion template:
Click here to download a customizable Proposed Order template:
California Code of Civil Procedure (CCP) § 582.5 allows a judgment debtor in a limited civil case (amount demanded is $25,000 or less) to ask the court for an order allowing the judgment to be paid in installments. This request is made by a formal noticed motion, and may be granted for good cause at any time after the judgment; even if the judgment debtor never answered the complaint (i.e., the judgment was entered by default). In determining the amount of the installment payments, the court may consider any of the factors that would be considered in reviewing a request for a claim of exemption, so the judgment debtor's source and amount of income and his/her expenses are directly relevant to the court in reviewing this request. If the requested installment payment is less than 25% of your wages after taxes, you will need to justify why you need the money for the necessities of life or that it is somehow exempt from collection. For more information on those factors, see our Step-by-Step guide to filing a Claim of Exemption for a Bank Levy, available on our website at http://www.saclaw.org/pages/claim-exemption-bank-levy.aspx.
A request for a judgment to be paid in installments is made through a motion. A "motion" is a request made in a case asking the court to issue an order of some sort. Most motions are in writing. With few exceptions (such as in family law cases), there is no Judicial Council form for making a motion. Instead, the motion must be typed on 28-line pleading paper.
A Motion to Pay Judgment in Installments generally consists of five parts:
■ Notice of Motion;
■ Points and Authorities;
■ Declaration; and
■ [Proposed] Order
The Notice of Motion lets the opposing party know when and where the motion is scheduled to be heard, while the Motion lets the court and the opposing party know what is being requested. The Points and Authorities explains to the court and the opposing party the legal basis of the motion, while the Declaration provides evidence, sworn under penalty of perjury, supporting the motion. A [Proposed] Order is prepared for the Judge to sign.
The first two parts, the Notice of Motion and Motion, are typically combined together in the same document, while the Points and Authorities and Declaration are often separate documents. In many instances, however, they may be combined together into the same document, as in the case of the sample included in this Step-by-Step Guide. The Order must always remain a separate document. California Rule of Court Rule 3.1112.
STEP 1: PREPARE THE MOTION
At the end of this Guide is a sample fill-in-the-blank motion to pay in installments, designed to be used in simple two-party cases in which a judgment was entered against the defendant. Instructions for completing the form can also be found at the end of the Guide; however, it is best to read the entire Guide before attempting to complete the form.
You may download a customizable template of the motion from our website at http://www.saclaw.org/Uploads/files/Step-by-Step/installments-template.rtf. You may print the form and type or legibly write directly on it; or you may use the form as a template to draft your own motion. If you are customizing the template, you do not need to include any checkboxes. Simply use the text from the items you would have checked, and delete the unused text and the unused checkboxes. Although this Guide is printed double-sided to save paper, you must print your motion single-sided; the court will not accept double-sided documents.
In Sacramento, the Notice of Motion and Motion must end with the paragraph from Local Rule 1.06 (A) informing the parties of the tentative ruling system. That language is included in the sample at the end of this Guide.
1.1 Setting the Date of the Motion
In Sacramento, the party requesting to make installment payments is responsible for setting the date for hearing the motion. There are two very important deadlines you must consider when setting the date of a motion: the filing deadline and the service deadline.
Filing Deadline: The motion must be filed with the court at least sixteen court days prior to the motion date. CCP § 1005. Court days are Monday through Friday, excluding court holidays. To determine whether a particular filing date will meet this deadline, start with the first court day after the planned filing date as day one, and count forward sixteen court days. The first possible date the motion can be heard is day sixteen.
For example, suppose you wanted to file a document on May 21, 2012. You would start counting using May 22nd as day one. Do not count weekends or court holidays (there is only one court holiday in this example, which is Memorial Day, May 28). If you wanted to file a motion on May 21, 2012, the sixteenth court day after that would be June 13, 2012, which is the earliest date the motion could be heard.
Service Deadline: Prior to filing the motion with the court, all other attorneys, or self-represented parties in a case must be served with a copy of the motion. This means that someone over the age of 18 who is not a party in the case must either personally deliver a copy of the motion and related documents to the attorney or self-represented party or mail a copy of the motion and related documents to the party by first class mail.
If the motion is personally served, the service must be at least sixteen court days prior to the date of the motion, the same as the minimum filing deadline.
If the motion is served by first-class mail, additional time is added to the calculation, depending on where the mail originates and where it is sent. CCP § 1005. For example, if the documents are mailed from California to an address in California, five calendar days are added after the sixteen court days. Calendar days include weekends and holidays, but if the final day lands on a weekend or holiday, it is rolled over to the next court day. So, using May 21, 2012 as the date of mailing, for example, the sixteenth court day remains June 13, 2012, but five more calendar days must be added to determine the earliest motion date. This would make Monday, June 18th the first day the motion could be heard.
When choosing the date of your motion, be sure that you read CCP § 1005 carefully and have left enough time for the motion to be both served and filed in a timely fashion.
1.2 Determining the Department to Hear and the Time of the Motion
Motions to pay in installments are heard in Department 53 at 2:00 p.m. or Department 54 at 9:00 a.m., depending on your case number, Monday through Friday except for holidays. To determine whether your motion is in department 53 or 54:
■ IF your case number is in the format XXAMXXXXX or XXASXXXXX where X is a digit, look at the last digit of the case number. If it is odd, then your law and motion department is 53 at 2:00 p.m. If it is even, it is department 54 at 9:00 a.m.
■ IF your case number is in the format 34-YYYY-XXXXXXXX where YYYY is a year, and X are digits, look at the last two digits in the case number. If the last two digits are in the ranges of 00-24 or 75-99, your law and motion department is 53 at 2:00 p.m. If the last two digits are in the ranges of 25-74, it is department 54 at 9:00 a.m.
STEP 2: MAKE COPIES
Make four (4) copies of your Motion and [Proposed] Order to Pay Judgment in Installments. One of these copies is to be served on the other side's attorney (or the other side, if the other side does not have an attorney); the original and the other three copies are to be filed with the court. Staple each of the copies, but leave the original unstapled. Sacramento County Superior Court uses an electronic filing system in which documents are scanned in electronically. Stapled originals are not accepted because the staple will jam in the scanner, damaging both the document and the scanner.
STEP 3: HAVE THE MOTION SERVED
The person who is serving your Motion for you must complete a proof of service form, typically, either a Proof of Personal Service (POS-020) or a Proof of Service by First Class Mail (POS-030). For more information, see the Guides on our website at www.saclaw.org/pages/personal-service.aspx and www.saclaw.org/pages/pos-mail.aspx, respectively.
The proof of service form should be completely filled out, but not signed. Make a copy of the unsigned proof of service before proceeding.
The person over the age of 18 who is not a party to the case must then personally deliver or mail a copy of the Motion along with a copy of the unsigned proof of service form on other side's attorney (or the other side, if the other side does not have an attorney). The unsigned proof of service form can be attached as the last page of the Motion.
The person doing the serving then signs the Proof of Service form, and gives the signed Proof of Service to you.
STEP 4: COPY THE SIGNED PROOF OF SERVICE
Make three (3) copies of the signed Proof of Service. It is not necessary to copy the instruction page.
STEP 5: ASSEMBLE YOUR DOCUMENTS FOR FILING
Assemble your packet for filing as follows:
■ Motion with all pages, plus three (3) copies. The original should be unstapled in Sacramento, while each copy is stapled.
■ Completed Proof of Service Form. The original plus three (3) copies. This proof of service can be attached as the last page of the Motion when filing. If this is the case, then the original Proof of Service should be attached to the original Motion, and the copies of the Proof of Service should be attached to the copies of the Motion.
■ [Proposed] Order to Pay Judgment in Installments plus three (3) copies.
Important: Sacramento County Superior Court requires that the Exhibits in one of your sets of copies be separated by a rigid sheet of card stock with a tab identifying the letter of the exhibit on the bottom. Exhibits for the original and other copies should be separated by a blank piece of pleading paper with their exhibit letter or number (for instance, "Exhibit A") typed or written on the bottom of the page.
Note: The Sacramento County Public Law Library sells Exhibit Tab Card Stock for 25 cents per page. For more information, inquire at the circulation desk.
STEP 6: FILING/FEES
File your motion and proof of service at the Gordon D. Schaber Courthouse at 720 Ninth Street downtown.
At this time there is a $40 filing fee, unless your fees were waived. Current fees are available on the Sacramento County Superior Court's website at www.saccourt.ca. gov/fees/docs/fee-schedule.pdf. If you newly qualify for a fee waiver, you may file a request with the court. For more information, see the Step-by-Step guide on Fee Waivers on our website at http://www.saclaw.org/pages/fee-waiver.aspx.
STEP 7: OPPOSITION AND REPLY
If opposing counsel or self-represented party opposes your request, he or she may serve and file an opposition at least nine court days prior to your motion date. Be sure to check your mail, and read any documents you receive carefully.
If the opposing attorney or party opposes your motion, you may serve and file a reply to the opposition (also written on pleading paper), at least five days prior to the motion. This reply should carefully address any points made by the opposition, especially if that point was not originally addressed in your motion.
STEP 8: CHECK THE TENTATIVE RULING
Pursuant to Local Rule 1.06, the court will make a tentative ruling on the merits of your matter by 2:00 p.m. the court day before the hearing. You may read the tentative ruling online, or may call the Presiding Judge's department at 874-8142 to hear it. For more information, see the Legal Resource Guide on our website at www.saclaw.org/pages/ tentative-rulings.aspx.
Closely review the tentative ruling. Since you are asking the court for an order allowing you to pay in installments, you are looking for your motion to be "GRANTED." Your motion may also be "DENIED" or "GRANTED IN PART" and "DENIED IN PART." In any event, be sure to read the tentative ruling very carefully to make sure you understand it.
If you are happy with the tentative ruling, you do not need to do anything. You won't have to go to court unless ordered to appear in the tentative ruling or unless the other side calls you and the court between 2:00 p.m. and 4:00 p.m. the court day before your hearing date to request an oral argument in front of the judge. If that happens, you should go to the court hearing and be prepared to argue your case.
If you are not happy with the tentative ruling, and wish to present arguments in front of the judge, you must call all opposing counsel and/or self-represented parties, and the clerk for Department 53 ((916) 874-7858) or Department 54 ((916) 874-7848) no later than 4:00 p.m. the court day before your hearing and state that you are requesting oral argument on the motion. If neither you nor the opposing counsel or self-represented party requests oral argument, the court will simply make the tentative ruling the order of the court, and no oral argument will be permitted.
Visit the Sacramento County Civil Self-Help Center, located in the Sacramento County Public Law Library. Same-day appointments are made in-person by lottery at 8:30 a.m. Monday through Friday. Go to http://www.saclaw.org/pages/civil-self-help-center.aspx for more information.
FOR MORE INFORMATION
On the Web:
For information about the Sacramento County Superior Court's motion requirements, visit http://www.saccourt.ca.gov/civil/motions-hearings-general.aspx.
At the Law Library:
You can get much more detailed information and samples from books such as California Law & Motion Authorities (KFC 1012 .P37), California Law & Motion Model Forms (KFC 1012 .A65 P37), and Younger on California Motions (KFC 1012 .C35).
IF YOU HAVE QUESTIONS ABOUT THIS GUIDE, OR IF YOU NEED HELP FINDING OR USING THE MATERIALS LISTED, DON'T HESITATE TO ASK A REFERENCE LIBRARIAN.
Created 8/12 kb Reviewed 11/13 en