1CALIFORNIA LEGAL NEWSLETTER ARTICLE, ISSUE 1.This article will briefly discuss the issues involved in filing an opposition to a motion in Californiacivil litigation. Failing to file an opposition to a motion may be construed by the Court as anadmission that the motion has merit and should be granted. Thus it is
extremely
important that anopposition be served and filed to the motion.If a party fails to file timely written opposition to a motion or demurrer, the judge may refuse to permit oral argument against the motion. The judge, as a matter of discretion,
may
consider arequest
for continuance to allow filing of a written opposition. Because continuances are notfavored, valid reasons will have to be shown for the failure to file or late filing of opposing papers.If a continuance is granted, the court may require the opposing party or counsel to pay fees for theappearance incurred by other parties. See the
Rutter Group, Civil Procedure before trial
, 9:168.The opposition should contain a memorandum of points and authorities citing the reasons that themotion should not be granted, along with citations to the case law and statutory authority thatsupports the opposition, a declaration should also be included where appropriate. Failure tosupport the contentions of the opposition with a good argument and citations to authority mayresult in the unsupported contentions being considered waived by the court.“Contentions are waived when a party fails to support them with reasoned argument and citationsto authority.”
Moulton Niguel Water Dist. v. Colombo
(2003) 111 Cal. App. 4th 1210, 1215.The opposition to the motion must not exceed 15 pages, except in opposition to a summary judgment motion. If the memorandum of points and authorities exceeds 10 pages a table of contents and table of authorities must be included. The page limit does not include exhibits,declarations, attachments, the table of contents, the table of authorities, or the proof of service.See
California Rule of Court
3.1113.
Code of Civil Procedure
§ 1005 states in pertinent part that, “All papers opposing a motion shall befiled with the court and a copy served on each party at least nine court days before the hearing, and Notwithstanding any other provision of this section, all papers opposing a motion and all reply papers shall be served by personal delivery, facsimile transmission, express mail, or other meansconsistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure deliveryto the other party or parties not later than the close of the next business day after the time theopposing papers or reply papers, as applicable, are filed. This subdivision applies to the service of opposition and reply papers regarding motions for summary judgment or summary adjudication, inaddition to the motions listed in subdivision (a).” Note that
many
judges will strictly enforce the requirement that the opposition be served on time,and in the correct manner. While many attorneys and parties do in fact serve their opposition byregular mail the fact is that doing so is very risky in light of the previous sentence.The time limit does not apply to an opposition to a motion for summary judgment which must befiled and served at least fourteen (14) calendar days before the hearing, nor does it apply when aspecific code section specifies a different time requirement, or where a judge has ordered
otherwise.Judges usually decide motions based on evidence presented in the form of affidavits or declarations, rather than oral testimony. However, the court has discretion to receive oraltestimony, as well as exclude it. There are situations in which the judge may, in the exercise of such discretion, decide to hear witnesses or to allow cross-examination of a declarant. See
Rosenthal v. Great Western Fin'l Secur. Corp.
(1996) 14 Cal. 4th 394, 414.Any party wishing to introduce oral testimony at a hearing must, at least 3 days before the hearing,file a statement as to the nature and extent of the proposed testimony, and a reasonable timeestimate for the hearing. See
California Rule of Court
3.1306(b).The Court must consider any request for oral testimony: The judge may not adopt a policy of outright refusal to consider oral testimony on a motion hearing. Rather, if requested by either party,the judge must exercise his or her discretion as to whether oral testimony would be necessary or helpful to the decision of the matter. See
Reifler v. Sup.Ct
. (1974) 39 Cal.App. 3d 479, 485.As stressed at the beginning a party should do everything in their power to ensure that their opposition to a motion is timely filed and served so that the Court has time to review and consider their arguments and evidence in opposition to the motion.If you enjoy this article tell others about it. They can subscribe to my weekly legal newsletter byvisiting the following link: http://www.legaldocspro.net/newsletter.htm Have a great week andthanks for reading this article.Yours Truly,Stan BurmanThe author of this article, Stan Burman, is a freelance paralegal who has worked in Californialitigation since 1995.The author's website:http://www.legaldocspro.netView numerous sample documents sold by the author:http://www.scribd.com/legaldocsproCopyright 2012 Stan Burman. All rights reserved.DISCLAIMER:Please note that the author of this newsletter article, Stan Burman is NOT an attorney and as suchis unable to provide any specific legal advice. The author is NOT engaged in providing any legal,financial, or other professional services, and any information contained in this newsletter is NOT
intended to constitute legal advice.These materials and information contained in this newsletter article have been prepared by StanBurman for informational purposes only and are not legal advice. Transmission of the informationcontained in this newsletter is not intended to create, and receipt does not constitute, any businessrelationship between the sender and receiver. Subscribers and any other readers should not actupon this information without seeking professional counsel
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