Writing and Scheduling Motions
Disclaimer: This guide is intended as general information only. Your case may have factors requiring different procedures or forms. The information and instructions are provided for use in the Sacramento County Superior Court. Please keep in mind that each court may have different requirements. If you need further assistance, consult a lawyer.
Click here to download a pdf packet of this guide.
This packet includes:
- Step by Step Instructions
- Sample Notice of Motion and Motion
- Sample Memorandum of Points and Authorities
- Sample Declaration in Support of Motion
- Sample Proposed Order
Click here to download a customizable Motion template:
Click here to download a customizable Proposed Order template:
Motions are used to ask the judge to make an order in your case. The moving party chooses a hearing date, then files and serves a written motion arguing why they are entitled to the order. The other party files and serves opposition papers, and the moving party can, optionally, submit reply papers. The judge issues a tentative ruling granting or denying the motion on the day before the hearing. The judge's decision becomes final after the hearing.
Required Parts of Motions
Since there are no pre-printed Judicial Council forms for most civil motions, you must draft them yourself. Motions must be typed on 28-line pleading paper and follow a specific format. A motion consists of four parts, with an optional fifth:
- Notice of Motion;
- Points and Authorities in Support of the Motion;
- Declaration of [Name] in Support of the Motion; and
- Proposed Order (not required, but generally advisable).
Opposition papers consist of two parts:
- Memorandum of Points and Authorities in Opposition to the Motion; and
- Declaration of [Name] in Opposition to the Motion.
Occasionally a motion or opposition will require additional sections, such as a Request for Judicial Notice (asking the court to consider information from another court case) or a Separate Statement of Undisputed Facts in a motion for summary judgment. A motion to file amended or late pleadings usually requires a copy of the proposed pleading.
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 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.
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, all may be combined together into the same document, as in the case of the sample included in this Step-by-Step Guide. The Proposed Order (if included) is filed as a separate document.
Required Format: Motions must be written on "pleading paper," in a very specific format required by California Rules of Court 2.100-2.119. The first page must be set up in caption format, containing specific information. Each line must be numbered, and each page must have a footer with the page number and title of the motion. Type style and size, margins, and line spacing are all specified. The template motion at the end of this guide satisfies these requirements.
Notice of Motion and Motion: The Notice of Motion specifies the date, time, and location where the hearing will take place. The Motion spells out what the party is requesting and gives a very brief citation to the law supporting the request. 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.
Memorandum of Points and Authorities: "Points and Authorities" refers to legal arguments ("points") and the cases, statutes, or regulations supporting them ("authorities"). The parties must explain the law and how it applies to the facts of their case in order for the judge to rule in their favor. This portion of the motion usually requires original research, analysis, and writing, although the library has many resources to get you started. Particularly good starting places are listed at the end of this guide.
Declaration: The parties must provide some factual basis (evidence) for the motion. This is generally done by attaching a declaration explaining the facts in numbered paragraphs. The facts are usually cited by paragraph number in the Memorandum of Points and Authorities. For example, in the Declaration, defendant David Jones might write:
13. On July 3, 2013, I purchased a 2010 Toyota Camry, VIN 2894320, from plaintiff Smith's Used Car Lot.
In the Memorandum of Points and Authorities, Jones would write:
On July 3, 2013, defendant purchased a 2010 Toyota Camry, VIN 2894320, from plaintiff Smith's Used Car Lot. (Jones Decl., Para. 13.)
Documents can be attached to a declaration as exhibits. In the Declaration, identify the document with language such as "On Sept. 11, 2011 I signed a Substitution of Attorney form. A true and correct copy of the Substitution of Attorney is attached as Exhibit "A" to this Declaration." Photocopy the document and write "Exhibit A" on the bottom of the first page. If the exhibit is longer than one page, number each page.
Important: Sacramento County Superior Court requires each of 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 Law Library sells card stock and tabs for 25¢ each at the Circulation Desk.
Proposed Order: While not required, it is advisable to include a Proposed Order. If the order is served along with the motion, the judge can sign it immediately after making a decision.
STEP 1: PREPARE THE MOTION
1.1 Modify the Template Motion
At the end of this guide is a sample motion. It was completed by a hypothetical "Doug Defendant." You may download a customizable template of the motion from our website at http://www.saclaw.org/Uploads/files/Step-by-Step/motion-template.rtf. You will need to modify the text in blue to fit the specific facts of your case, and change the color of the text from blue to black. The court will not accept blue type in court pleadings.
1.2 Setting the Date of the Motion
Online Court Date Calculator
The Los Angeles County Superior Court offers a handy "Court Date Calculator" to assist in calculating the number of court days (excluding weekends and holidays) from a given date, counting either forward or backward.
In Sacramento, the moving party selects the date of the hearing. Generally you can select whatever date is convenient for you as long as it leaves time for filing and service. For a few types of motions – summary judgment/adjudication, motions to strike, demurrers, and judgment on the pleadings – you must call the court and reserve a date (Sac. Local Rule 2.39).
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: For most motions, the motion must be filed with the court at least sixteen court days before the hearing. Cal. Code of Civil Procedure (CCP) § 1005.
Warning! Some motions have different requirements. Check the rules for the motion you are filing. The Sacramento County Superior Court has prepared a "Quick Motion Checklist" noting the deadlines for filing and service, and statutory authority for, most motions. The Checklist is available on the Court's website at http://www.saccourt.ca.gov/civil/docs/motion-quick-reference-list.pdf.
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 22 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. CCP §1005.
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 18 the first day the motion could be heard.
When choosing the date of your motion, be sure that you have left enough time for the motion to be both served and filed in a timely fashion.
1.3 Setting the Location of the Motion
In Sacramento, most civil cases are assigned to either Department 53 or Department 54, located at 800 9th Street, 3rd Floor, Sacramento, CA 95814, for "law and motion" purposes.
A few types of motions are heard in other departments:
Presiding Judge (Dept 47) hears all motions for consolidation, severance, bifurcation, intervention, pretrial conference, coordination, change of venue, consolidation, or to advance or continue trial.
- The Case Management Program judges (Depts. 36 and 39) hear motions in CMP cases, including motions related to judicial arbitration, redesignation of a case, for extension of time to answer a complaint, relief from CMP rules, or the certificate for short cause matters.
- If a judge has been assigned for all purposes, all motions will be heard in that department.
- The trial judge hears motions in limine and all motions after trial begins (or ends).
See the "Quick Motion Checklist" available on the Sacramento County Superior Court's website at http://www.saccourt.ca.gov/civil/docs/motion-quick-reference-list.pdf for a list of which department hears which types of motions.
STEP 2: MAKE COPIES
Make four (4) copies of your Motion (and Proposed Order, if included). 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 form or a Proof of Service by First Class Mail form. For more information on these Proofs of Service, see the guides on our website at http://www.saclaw.org/pages/personal-service.aspx (personal) and http://www.saclaw.org/pages/pos-mail.aspx (by mail).
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 theMotion.
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.
□ Proposed Order, if included, 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.
STEP 6: FILING/FEES
Most motions are filed at 720 Ninth Street, Room 102. Oppositions and replies must be filed directly with the department where the hearing is scheduled. See the "Quick Motion Checklist" available on the Sacramento County Superior Court's website at http://www.saccourt.ca.gov/civil/docs/motion-quick-reference-list.pdf to see where to file your motion. At this time there is a $60 filing fee, unless your fees were waived. Current fees are available on the Sacramento County Superior Court's website.
STEP 7: OPPOSITION AND REPLY
If opposing counsel or self-represented party opposes your motion, he or she may serve and file an opposition at least nine court days prior to your motion date (fourteen for motions for summary judgment/adjudication). No fee is required to file an opposition. The opposition contains a memorandum of points and authorities and usually a declaration, but does not need the notice of motion or motion. Be sure to check your mail, and read any documents you receive carefully.
If the opposing attorney or party opposes your motion, you may choose to serve and file a reply to the opposition at least five court days prior to the motion. No fee is required to file a reply. The reply should carefully address any points made by the opposition, especially if that point was not originally addressed in your motion. The reply should also contain a memorandum of points and authorities and usually a declaration.
STEP 8: TENTATIVE RULINGS
Pursuant to Local Rule 1.06 (A), 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 information on how to view the ruling online, see the Legal Resource Guide on our website at http://www.saclaw.org/pages/tentative-rulings.aspx.
Closely review the tentative ruling. If you filed the motion, you are looking for your motion to be "GRANTED." If you are opposing the motion, you are looking for the motion to be "DENIED." If you are happy with the tentative ruling, you do not need to do anything unless the court orders you to appear in the tentative ruling or the other side calls you before 4:00 p.m. 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, self-represented parties, and the clerk for the department where the motion is scheduled no later than 4:00 p.m. the court day before your motion is scheduled 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.
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:
California Civil Procedure Before Trial KFC 995 .C34
Chap. 12, "Noticed Motions"
Electronic Access: On the Law Library's Computers, using OnLaw.
California Forms of Pleading and Practice KFC 1010 .B4 (Ready Reference)
Chapter 372, "Motions and Orders," and various chapters on specific types of motions.
Electronic Access: On the Law Library's computers, using the Matthew Bender CD.
California Points and Authorities KFC 1010 .B4 (Ready Reference)
Electronic Access: On the Law Library's computers, using the Matthew Bender CD.
California Practice Guide: California Law & Motion Model Forms KFC 1012 .A65 P37
California Practice Guide: California Law and Motion Authorities KFC 1012 .P37
Electronic Access: On the Law Library's computers, using WestlawNext.
Opposing California Civil Motions: Model Opposition Briefs KFC 1012 .O6 P37
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.