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CALIFORNIA LEGAL NEWSLETTER ARTICLE, ISSUE 1.

This article will briefly discuss the issues involved in filing an opposition to a motion in California civil litigation. Failing to file an opposition to a motion may be construed by the Court as an admission that the motion has merit and should be granted. Thus it is extremely important that an opposition 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 a request for continuance to allow filing of a written opposition. Because continuances are not favored, 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 the appearance 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 the motion should not be granted, along with citations to the case law and statutory authority that supports the opposition, a declaration should also be included where appropriate. Failure to support the contentions of the opposition with a good argument and citations to authority may result in the unsupported contentions being considered waived by the court. Contentions are waived when a party fails to support them with reasoned argument and citations to 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 be filed 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 means consistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing 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, in addition 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 by regular 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 be filed and served at least fourteen (14) calendar days before the hearing, nor does it apply when a specific 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 oral testimony, 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 time estimate 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 by visiting the following link: http://www.legaldocspro.net/newsletter.htm Have a great week and thanks for reading this article. Yours Truly, Stan Burman The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. The author's website: http://www.legaldocspro.net View numerous sample documents sold by the author: http://www.scribd.com/legaldocspro Copyright 2012 Stan Burman. All rights reserved. DISCLAIMER: Please note that the author of this newsletter article, Stan Burman is NOT an attorney and as such is 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 Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this newsletter is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.