EFFECTIVE MOTION
PRACTICE
➢ If the authority for your request is found in the Probate Code
➢ Familiarize yourself with the “Law and Motion” portion of our Local Rules. (Division 4, Chapter 23, of the San Diego
Superior Court Local Rules.)
➢ Section 4.23.1(A) of the San Diego Superior Court Local Rules: “An application for relief based upon the Probate Code must be brought as a petition. An application for relief based upon the Code of Civil Procedure or Civil Code must be brought as a motion.”
➢ California Rules of Court, rule 3.1103(a) [“Law and motion” includes any proceedings …On application before trial for an order, except for causes arising under the … the Probate
Title 3, Division 11 of the California Rules of Court
➢ A motion must include a Notice of Motion, the motion
itself and a memorandum of points and authorities. (CRC 3.1112(a).)
➢ A clear statement of the nature of the request for relief should be set forth in the Notice of Motion. (CRC
3.1110(a).)
➢ The memorandum of points and authorities “must contain a statement of facts, a concise statement of the law,
evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the
➢ Absent leave of court, the length of a memorandum of
points and authorities cannot exceed that set forth by CRC
3.1113(d). (CRC 3.1113(e).)
➢ “A memorandum that exceeds 10 pages must include a
table of contents and a table of authorities. A
memorandum that exceeds 15 pages must also include an opening summary of argument.” (CRC 3.1113(f).)
➢ Use of footnotes and endnotes should be avoided. ➢ Use of a Judicial Council form, where available, is
➢ Exhibits to the motion should be tabbed and accompanied
by an index for ease of reference. (CRC 3.1110(f)(3).)
➢ Only relevant pages of a deposition transcript need be submitted as an exhibit. The relevant portion of the
testimony must be “marked in a manner that calls attention to the testimony.” (CRC 3.1116(c).)
➢ Supporting declarations should be filed rather than lodged with the court so that they may be part of the permanent court record. (CRC 3.1302(a).)
➢ Proof of service of the motion must be filed no later than five court days prior to the hearing and must indicate
➢ Legal citation should always be offered in support of arguments.
➢ Always check citations for accuracy.
➢ Avoid personal attacks against the opposing party or their counsel in your legal briefs. These attacks are not considered by the court and only serve to denigrate the quality of the debate.
➢ Legal briefs should be concise and to the point, avoiding mention of non-legal quotations or literary references.
➢ Motions should be supported by evidence. Facts alleged in a legal brief will be ignored unless supported by a declaration or some other form of competent evidence.
➢ Immediately notify the court if a motion needs to go off calendar.
Motions for Summary Judgment/Adjudication
➢ Specify whether you are seeking only a motion for
summary judgment or an alternative motion for summary adjudication as well. (Homestead Sav. v. Sup.Ct.
(Dividend Develop. Corp.) (1986) 179 Cal.App.3d 494,
498.)
➢ A separate statement of undisputed facts must be offered
Motions for Summary Judgment/Adjudication
➢ A separate statement of undisputed facts is not necessary
or authorized in support of a reply brief. (See San Diego
Watercrafts, Inc. v. Wells Fargo Bank (2002) 102
Cal.App.4th 308.)
➢ If you are seeking summary adjudication, whether
separately or as an alternative to summary judgment,
Motions for Summary Judgment/Adjudication
➢ Clearly identify the undisputed facts in your motion and
tailor your arguments around those facts.
➢ Do not target your motion to a prayer for relief, but to a
cause of action, an issue of duty, a claim for damages or an affirmative defense.
Caveat: New rule allows parties to stipulate to “summary adjudication of a legal issue or a claim for damages other
than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty
Motions for Summary Judgment/Adjudication
➢ Evidentiary objections to the motion or opposition must
comply with CRC 3.1354.
➢ Evidentiary objections must be to the evidence offered in
support of the motion and not to the arguments contained in the memorandum of points and authorities or to the
separate statement of undisputed facts. (CRC 3.1354.)
➢ Cite to evidence rather than the separate statement
wherever appropriate and clearly mark your exhibits so that particular documents can be easily and quickly
Motions for Summary Judgment/Adjudication
➢
Disturbing new trend: using CCP §
128.7 sanctions procedure as an
Demurrers
➢ Do they belong in probate?
➢ Strongly consider if a demurrer to a probate petition is
Demurrers
➢ “A demurrer does not lie to a portion of a cause of action
…” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682), and “must dispose of an entire cause of action to be sustained.” (Fremont Indemnity Co. v.
Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)
➢ A demurrer also does not lie to a type of damage or
remedy. (Kong v. Hawaiian Gardens Redevelopment
Agency (2002) 108 Cal.App.4th 1028, 1047.)
➢ Do not target the demurrer to a request for relief, i.e., a
➢ Each ground for the demurrer must be separately stated and must specify whether it applies to the entire
complaint, cross-complaint or answer. (CRC 3.1320(a).)
➢ Do not argue the facts. The allegations in the pleading are taken as true for purposes of demurrer.
Demurrers
➢ Prior to bringing a demurrer, you must meet and confer
with opposing counsel to see if you can come to an
agreement regarding an amendment to the pleading at issue. (CCP § 430.41.)
➢ The same is true when bringing a motion to strike (CCP §
435.5) or a motion for judgment on the pleadings (CCP § 439).
➢ Lack of personal jurisdiction is not a proper basis for a
Discovery Motions
➢ Familiarize yourself with the California Rules of Court,
rule 3.1345.
➢ Clearly state in the Notice of Motion whether you are
seeking initial responses or further responses to a discovery request.
➢ Be sure to know and comply with the procedural
requirements of the Civil Discovery Act with regard to motions to compel initial responses to discovery versus motions to compel further responses to discovery.
➢ Include a separate statement if required to do so by CRC
Discovery Motions
➢ Familiarize yourself with CCP § 2023.040:
▪ “A request for a sanction shall, in the notice of motion,
identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”
➢ Your accompanying declaration should clearly and
Discovery Motions
➢ Focus your motion on the discovery dispute, not the
underlying controversy.
➢ Attach copies of the discovery requests served and the
Discovery Motions
➢ Attach ALL meet and confer exchanges.
➢ Clearly identify the interrogatories, inspection demands or admissions requests by set and number. (CRC 3.1345(d).) ➢ Where appropriate, include a declaration setting forth your
attempts at informal resolution of the issues.
➢ Make an honest and good faith effort at resolution before seeking intervention by the court.
Motion to Withdraw as Coun
sel
➢ 90% are denied for procedural defects.
➢ There is a mini-celebration in the back hallway when one
is properly presented.
➢ Motion must be utilized [substitution is not enough] if you
are the attorney for “guardians of the estate,
Motion to Withdraw as Counsel
➢ Relevant Authority:
▪ California Rules of Court, Rule 3.1362; ▪ CCP § 284;
Motion to Withdraw as Counsel
➢ You are required to use the mandatory Judicial Council
forms. Your motion will not be considered if you do not. They are MC-051, MC-052, and MC-053.
➢ You MUST file and serve the proposed order.
➢ You MUST serve your client and ALL others who have
appeared in the case.
➢ You MUST attest that you verified that your client’s
address is current within the 30 days preceding the filing of the motion.
Think of your reader
➢ Untabbed Exhibits.
▪ Each paper exhibit must be separated by a hard 8 ½ x
11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. (CRC 3.1110(f)(3)
➢ Over-limit points and authorities. (CRC 3.1113(d).)
➢ Evidentiary objections in non-MSJs. We don’t consider them.
➢ Discovery motions that do not clearly state which items remain at issue.
➢ Requests for judicial notice that are not made in a separate document. (3.1113(L).)
➢ Reply papers that simply repeat the initial memorandum of points and authorities.
➢ Not notifying the court when a motion is going off
