Downtown Superior Court

Sunil R. Kulkarni

Supervising Judge, Santa Clara County Superior Court

Complex Litigation/CEQA

UC College of the Law, San Francisco

Judge Kulkarni has been a judge on the Santa Clara County Superior Court for over seven years. Before taking the bench, he was a senior counsel for the University of California for over two years, and with Morrison & Foerster LLP for over 13 years as a partner and associate.

The objective of this article and accompanying self-study quiz is to familiarize readers with California law and motion procedures. The article will cover topics which include the definition of law and motion; procedural requirements; tentative rulings; written orders; ex parte applications; and temporary restraining orders.

What Is Law and Motion?

Law and motion are proceedings where there is an application before trial for an order. Cal. Rules of Court, Rule 3.1103(a)(1). In addition, law and motion includes applications "for an order regarding the enforcement of judgment, attachment of property, appointment of a receiver, obtaining or setting aside a judgment by default, writs of review, mandate and prohibition, a petition to compel arbitration, and enforcement of an award by arbitration." CRC 3.1103(a)(2).

Law-and-motion departments may also hear petitions for writs of traditional and administrative mandate. Code of Civil Procedure Sections 1086, 1094.5. CRC 3.1103(a)(1) specifically excludes causes arising under the Welfare and Institutions Code, the Probate Code, the Family Code, and specified civil harassment actions.

Common examples of law and motion matters include:

• Motions to quash, to set aside default;

• Motions for leave to amend;

• Demurrers, motions to strike/judgment on pleadings;

• Anti-SLAPP motions;

• Motions for summary judgment/adjudication;

• Provisional relief (injunctions, attachment, receiver);

• Petitions for writ of mandate;

• Settlement-related motions (CCP Sections 664.6, 877.6);

• Motions for admission pro hac vice, to withdraw as counsel;

• Petitions to compel arbitration and stay, to confirm arbitration awards;

• Discovery motions;

• Motions for approval of class action, PAGA, Prop. 65 settlements;

• Motions to dismiss for delay in prosecution;

• Motions for attorney fees, sanctions; and

• Motions for reconsideration, and for a new trial.

There are statutes which set forth the procedures with some motions, including:

• Demurrers (CRC 3.1320);

• Motions to strike (CRC 3.1322);

• Amended pleadings (CRC 3.1324; CCP Section 472);

• Change of venue (CRC 3.1326);

• Petitions to compel arbitration (CRC 3.1330);

• Motions to dismiss (CRC 3.1340, 3.1342);

• Discovery motions (CRC 3.1345-3.1348); and

• Summary judgment (CRC 3.1350-3.1354; CCP Section 437c).

Procedural Requirements

CRC 3.1112(a) provides that, unless otherwise provided by the rules, papers filed in support of a motion must consist of at least the following: (1) A notice of hearing on the motion; (2) the motion itself; and (3) a memorandum in support of the motion or demurrer. "Other papers may be filed in support of a motion, including declarations, exhibits, appendices, and other documents or pleadings." CRC 3.1112(b).

Page limits must be complied with, as set forth in CRC 3.1113(d): 15 pages for motions/oppositions (except for summary judgment/adjudication motions, which have a page limit of 20 pages for motions/oppositions) and 10 pages for all replies "A party may apply to the court ex parte but with written notice of the application to the other parties, at least 24 hours before the memorandum is due, for permission to file a longer memorandum. The application must state reasons why the argument cannot be made within the stated limit." CRC 3.1113(e).

With some motions, specified papers are required.

• Summary judgment

- Separate statement of undisputed facts. CCP Section 437c(b)(1),(3); CRC 3.1350.

- Failure of opponent to file separate response to separate statement may justify by itself granting the motion. CCP Section 437c(b)(3).

• Discovery motions

- Separate statement generally required unless no response has been provided. CRC 3.1345(a), (b)(1).

- Some judges/courts forego separate statements. CRC 3.1345(b)(2).

California Judicial Council-provided forms are mandatory for some filings, including

• Motions to withdraw as counsel (MC 051-053);

• Requests for dismissal (CIV-110);

• Applications and orders for appearance and examination (AT-138/EJ-125);

• Notices of stay of proceedings (CM-180); and

• Notices of settlement of an entire case (CM-200).

Notice must be provided:

• For most motions (CCP Section 1005(b)):

- at least 16 court days' notice, plus service (two or five calendar days)

- Opposition: nine court days

- Reply: five court days

• Summary judgment (CCP Section 437c):

- 75 calendar days' notice, plus service (two court days/five calendar days)

- Opposition: 14 calendar days

- Must be heard at least 30 days before trial, unless court for good cause orders otherwise

• Petitions to confirm arbitration awards

- To be heard in "summary" fashion and entitled to preference over all other civil actions or proceedings (CCP Sections 1290.2, 1291.2)

- Not less than 10 days' notice of the date set for the hearing on the petition shall be given. CCP Section 1290.2.

- Response is due within 10 days after service of the petition (CCP Section 1290.6).

For purposes of notice, days are counted differently depending on whether retrospective or prospective orders are sought.

• Retrospective -- If an act is required to be performed no later than a specified number of days before a hearing date, it must be counted backwards from the hearing date, excluding the day of the hearing; adding time for service (CCP Section 12c).

• Prospective -- If act required to be performed within specified number of days after an event, it must be count forward from the triggering event, adding time for service, to the next court day if necessary (see CCP Section 12a).

A court may refuse, in its discretion, to consider a late-filed paper, and if it does, the minutes or order must so indicate. CRC 3.1300(d). However, in view of the strong policy of the law favoring the disposition of cases on their merits, better practice may be to consider late filing, at least if no prejudice to opponent. Juarez v. Wash Depot Holdings, Inc., 24 Cal. App. 5th 1197 (2018).

It is generally not proper for moving party to introduce new evidence with reply papers, especially on summary judgment. If exceptional circumstances are shown allowing the new evidence to be presented, the other party should be given the opportunity to respond. Jay v. Mahaffey, 218 Cal. App. 4th 1522 (2013).

"Meet and Confer" requirements apply to demurrers, motions to strike, and for judgment on the pleadings (CCP Sections 430.41, 435.5, 439(a)). Meet and confer must be in person or by telephone, and set forth in a declaration. There is an automatic 30-day extension if unable to comply. See, e.g., CCP Section 430.41.

Tentative Rulings

"A tentative ruling is just that, tentative." Guzman v. Visalia Community Bank, 71 Cal. App. 4th 1370 (1999). "[A] trial court's tentative ruling is not binding on the court; the court's final order supersedes the tentative ruling." Silverado Modjeska Recreation and Parks Dist. v. County of Orange, 197 Cal. App. 4th 282 (2011). "Submission [by a party] on a tentative ruling is neutral; it conveys neither agreement nor disagreement with the analysis." Mundy v. Lenc, 203 Cal. App. 4th 1401 (2012).

There are four approaches authorized by CRC 3.1308: (1) Notice of intent to appear required; (2) No notice of intent to appear required; (3) Post tentatives outside courtroom on day of hearing; and (4) Announce at time of argument.

Written Orders

Unless the court elects to prepare the order itself, the prevailing party is to prepare the order disposing of the motion. CRC 3.1312(a).

Findings are generally not required in orders. But, there are exceptions:

• Sealing order (CRC 2.550); and

• Petition to compel arbitration or confirmation arbitration award (CCP Section 1291).

Grounds or reasons should be provided with orders that include:

• Orders sustaining demurrer (CCP Section 472d);

• Orders granting/denying summary judgment (CCP Section 437c(g));

• Appointing referee (CCP Section 639(d)).

Ex Parte Applications

Unless permitted by law, an ex parte application requires "an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte." CRC 3.1202(c).

Required pleadings are as follows: notice; application; supporting declaration(s); memorandum; and proposed order.

Common examples include,

• Extensions of time to answer (CRC 3.110);

• Amending pleadings;

• Motions for orders shortening time to have motions heard;

• CCP Section 437c(h) applications for more discovery before a hearing on a summary judgment motion;

• Motion to dismiss (CCP Section 581(f)); and

• Stopping the holding of a deposition pending some TROs/Preliminary Injunctions.

TROs/Preliminary Injunctions

An ex parte application for a TRO

• Must be supported by declaration(s). CRC 3.1204.

• Notice to opposing party is required, as is a showing of irreparable harm.

• The court must ask, will great or irreparable injury result to the applicant before the matter can be heard on notice? CCP Section 527(c).

There is a two-factor test used for granting a TRO. The moving party must show both: (1) Reasonable probability of prevailing on the merits (Butt v. State of California, 4 Cal. 4th 668 (1992)); and (2) The interim harm that the plaintiff would be likely to sustain if the injunction were denied outweighs the harm the defendant would be likely to suffer if the preliminary injunction were issued. Smith v. Adventist Health System/West, 182 Cal. App. 4th 729 (2010).

A court should issue a TRO only if both factors are satisfied. See Cohen v. Board of Supervisors, 40 Cal. 3d 277 (1985) ("Even if the trial court had found for appellants on the 'likelihood of success on the merits' factor, it nevertheless could have refused to issue a preliminary injunction if it found that the interim harm to appellants did not outweigh the interim harm to respondents").

The purpose of a TRO is to preserve the status quo until a final determination of the merits of the action. Continental Baking Co. v. Katz, 68 Cal. 2d 512 (1968). When injunctive relief is sought, consideration of public policy is not only permissible but mandatory. Saltonstall v. City of Sacramento, 231 Cal. App. 4th 837 (2014). In order to overcome the general rule against enjoining public officers or agencies from performing their duties, a plaintiff must make a "significant showing of irreparable injury." Tahoe Keys Property Owners' Assn. v. State Water Resources Control Board, 23 Cal. App. 4th 1459 (1994). 