ISSUE NUMBER 1OPPOSITION TO A MOTION IN CALIFORNIA
The topic of the newsletter this week is filing an opposition to a motion in California civillitigation. Failing to file an opposition to a motion may be construed by the Court as an admissionthat the motion has merit and should be granted. It is therefore 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 their 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 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 to supportthe contentions of the opposition with a good argument and citations to authority may result in theunsupported 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 contentsand 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 CaliforniaRule of Court 3.1113.Code of Civil Procedure Section 1005 states in pertinent part that, “All papers opposing a motionshall be filed with the court and a copy served on each party at least nine court days before thehearing, and Notwithstanding any other provision of this section, all papers opposing a motion andall 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 ensuredelivery to the other party or parties not later than the close of the next business day after the timethe opposing papers or reply papers, as applicable, are filed. This subdivision applies to the serviceof 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.
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