US+-+California+-+Motions+and+Orders

=Motions and Orders [California]=



Motions and orders are governed generally by Code Civ. Proc. §§ 1003-1008, 1064, notices of motion by Code Civ. Proc. §§ 1005, 1010, and service of notices and papers by Code Civ. Proc. §§ 1010-1020. The filing fee required to be paid and exceptions to the requirement are covered by Gov. Code § 70617.

A comprehensive set of rules governing civil law and motion proceedings in superior court is set forth as Cal. Rules of Ct., Rule 3.1110 et seq. "Law and motion" is defined in Cal. Rules of Ct., Rules 3.1103(a). The rules also apply to discovery proceedings in family law and in probate Cal. Rules of Ct., Rule 3.1110]. In addition, unless the context or subject matter otherwise requires, the rules apply to demurrers Cal. Rules of Ct., Rule 3.1103(c)].

Appearance at hearings on motions is governed by Cal. Rules of Ct., Rule 3.670 and by Cal. Rules of Ct., Stds. Jud. Admin., Std. 3.1.

In addition to the statutes and California Rules of Court, local court rules often impose specific and precise requirements on motion practice. However, as of July 1, 2000, Cal. Rules of Ct., Rule 3.20, declares that the Judicial Council preempts local rules relating to pleadings, demurrers, ex parte applications, motions, discovery, provisional remedies, and the form and format of papers, and that no trial court,or any division or branch of a trial court is to enact or enforce any local rule concerning those fields. All local rules concerning these fields are declared to be null and void as of July 1, 2000, unless otherwise permitted or required by statute or a rule in the CA Rules of Ct. Cal. Rules of Ct., Rule 3.20(a)]. There are some exceptions, most significantly for local rules enacted under the Trial Court Delay Reduction Act Cal. Rules of Ct., Rule 3.20(b), (c)].

"Order" and "Motion" Defined
An "order" is a direction of a court or judge, made or entered in writing, and not included in a judgment. A "motion" ( *) is an application for an order Code Civ. Proc. § 1003]. These definitions, which by their placement in the code apply to civil actions, are applicable to similar acts in a special proceeding Code Civ. Proc. § 1064].

An order must be either entered in the court's permanent minutes or signed by the judge and stamped "filed" [ Shpiller v. Harry C.'s Redlands (1993) 13 Cal. App. 4th 1177, 1179, 16 Cal. Rptr. 2d 814 ; Michael v. Aetna Life & Cas. Ins. Co. (2001) 88 Cal. App. 4th 925, 932, 106 Cal. Rptr. 2d 240 ; see Cal. Rules of Ct., Rule 8.104].

A motion is not an independent right or remedy, but, rather, is confined to incidental matters in the progress of a cause. A motion relates to some question that is collateral to the main object of the action and is connected with and dependent on the principal remedy. Hence, it is not proper to raise by motion wholly distinct and independent matters that generally should be the subject of a formal petition or complaint [ Killian v. Millard (1991) 228 Cal. App. 3d 1601, 1606, 279 Cal. Rptr. 877].

The nature of a motion is determined by the nature of the relief sought and not by the label attached to it [ City & County of S. F. v. Muller (1960) 177 Cal. App. 2d 600, 603, 2 Cal. Rptr. 383].

Motions are not independent rights or remedies, but imply a pendency of suits between the parties and are confined to matters collateral, or incidental, to the main objects of the actions [ People v. Burks (1961) 189 Cal. App. 2d 313, 317, 11 Cal. Rptr. 200, cert. denied, 368 U.S. 898 ; People v. Sparks (1952) 112 Cal. App. 2d 120, 121, 246 P.2d 64, cert. denied, 345 U.S. 959 (1953)]. As the rule is sometimes expressed, a motion relates to some question collateral to the main object of the action and is connected with, and dependent on, the principal remedy [ People v. Sparks (1952) 112 Cal. App. 2d 120, 121, 246 P.2d 64, cert. denied, 345 U.S. 959 (1953) ; see also Donald J. v. Evna M. (1978) 81 Cal. App. 3d 929, 934, 147 Cal. Rptr. 15].

Although incidental to an action or special proceeding, motions may be made throughout the pendency of a cause.

An action is deemed to be pending from the time of its commencement until its final determination on appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied Code Civ. Proc. § 1049].

( *)**Vocal motions are called //ore tenus// motions.**

Resources
California Rules of Court Find California Codes [|LexisNexis(R) Customized Solution for California Courts]

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