12 Noticed MotionsI.INTRODUCTIONA.Scope of Chapter12.1B.Governing Law1.Statutes12.22.California Rules of Court12.33.Applicability of Local Court Rules and Policies12.4C.Tactical Objectives12.5D.Consultation With Client12.6II.TIME FOR MAKING MOTIONA.Timing Considerations12.71.Statutory and Rule Restrictions on Timing of Motions12.82.Calculating Effect of Service on Timing of Motion12.93.Effect of Service by Methods Other Than Personal Delivery12.10B.Shortening Time12.111.By Stipulation12.122.By Application for Order Shortening Time12.13C.Extending Time12.141.By Stipulation12.152.By Motion12.16III.NOTICE OF MOTION AND MOTIONA.Motion Defined12.17B.Necessary Papers12.18C.Notice of Motion and Motion12.191.Physical Formattinga.Paper, Print, Spacing, and Margins12.20b.Binding12.21c.Footer12.222.Information Required in Captiona.Attorney Information12.23b.Title of Court12.24c.Telephone Appearance12.25d.Title of Case12.26e.Nature of Paper12.27f.Date, Time, Location of Hearing12.28(1)Date and Time12.29(2)Location12.30g.Name of Hearing Judge12.31h.Attachments12.323.Body of Notice of Motion and Motion12.33a.Introductory Line12.34b.Nature of Order Sought12.35c.Grounds for Issuance of Order12.36(1)Effect of Failure to State Grounds12.37(2)Courts Consideration of Grounds Not Stated in Motion12.384.Identification of Papers Supporting the Motion12.39a.Reference to Papers Previously Filed With Court12.40b.Papers Not Previously Served on Adverse Party12.415.Date; Signature12.42D.Checklist: Procedures for Motions and Hearings12.43IV.SUPPORTING DOCUMENTSA.Memorandum in Support of Motion1.When Supporting Memorandum Required12.442.Motions, Applications, and Petitions Not Requiring Memorandum12.453.Format of Supporting Memoranduma.Contents of Supporting Memorandum12.46b.Format and Style12.47c.Length of Supporting Memorandum12.48d.Table of Contents; Table of Authorities12.494.Organization of Supporting Memorandum12.50a.Introductory Statement; Introduction12.51b.Argument(1)Summary of Argument12.52(2)Concise and Persuasive Argument12.53(3)Applicable Statutes and Cases12.54(a)Improper Use of Repealed or Overruled Legal Authority12.55(b)Using Authority From Jurisdictions Outside California12.565.Conclusion12.576.Signature12.58B.Declarations1.Declaration Compared With Affidavit12.592.Declaration as Substitute for Oral Testimony12.603.Selecting Declaranta.Tactical Considerations12.61b.Attorney as Declarant12.624.Format of Declarationa.Caption12.63b.Identity of Declarant12.64c.Competence of Declarant12.65(1)Declarations Made On Information and Belief12.66(2)Expert Declarations12.675.Admissibility of Matters Stated12.68a.Statements of Opinion12.69b.Hearsay Statements12.706.Subscription12.71a.Declaration Under Penalty of Perjury12.72(1)Writing Requirement12.73(2)Date of Execution12.74b.Affidavit12.75C.Pleadings and Papers on File12.76D.Documentary Evidence in Support of Motion12.77E.Attached Exhibits12.781.Materials Lodged With Clerk12.792.Use of Copies12.80F.Requests for Judicial Notice12.81V.SERVICE AND FILINGA.Proof of Service12.821.Whom to Serve12.832.Service by Mail12.843.Service by Personal Delivery12.854.Service by Fax or Electronically12.86B.Filing Papers With Court12.87C.Service on Public Officer or Agency1.Service on Attorney General12.882.Proof of Service12.893.Identification on Cover12.90VI.OPPOSING MOTIONA.Tactical Considerations1.Initial Evaluation of Motion12.91a.Cost-Benefit Analysis12.92b.Factors to Be Evaluated12.932.Consulting With Client12.943.Leaving Motion Unopposed12.954.Resolving Motions by Stipulation or Compromise12.96B.Grounds for Opposing Motion1.Noncompliance With Procedural Requirements12.972.Evidentiary Matters Inadmissible or Declarant Incompetent12.983.Facts or Law Insufficient to Support Motion12.99C.Preparing Opposition Papers1.Memorandum in Opposition to Motion12.100a.Organization of Opposition Memorandum12.101b.Length Restrictions on Opposition Memorandum12.1022.Declarations Opposing Motion12.1033.Other Evidentiary Material12.104D.Opposition Procedure1.Check for Additional Filing Requirements12.1052.Time for Filing Opposition Papers12.1063.Serving and Filing Opposition Papers12.1074.Moving for Continuance12.108E.Checklist: Procedure for Responding to Noticed Motion12.109VII.REPLYA.Replying to Opposition Papers12.110B.Responding to Reply Papers12.111VIII.HEARINGA.Attendance12.112B.Tentative Rulings12.112AC.Telephone Appearances1.When Telephone Appearance Is Appropriate12.113a.Procedure for Appearing by Telephone12.114b.Matters in Which Personal Appearance Is Required12.115c.Ex Parte Proceedings12.115A2.Notice of Intent to Appear by Telephonea.Notice Requirements for Proceeding Other than Ex Parte Application12.116b.Notice Requirements for Ex Parte Application12.116A3.Personal Appearance After Notice to Appear by Telephone12.1174.Teleconferencing12.118D.Oral Argument1.Purpose of Oral Argument12.1192.Presentation of Argument12.1203.Answering Judges Questions12.121E.Presenting Evidence12.122F.Arranging for Court Reporter12.123IX.RULINGS AND ORDERSA.Rulings and Orders Defined12.124B.Courts Ruling on Noticed Motion12.125C.Order After Hearing1.Preparation of Order12.1262.Reason to Submit Proposed Order12.1273.Contents of Proposed Order12.1284.Findings12.129D.Notice of Ruling12.130E.Procedures After Motion Granted1.Moving Party12.1312.Opposing Party12.132F.Procedures After Motion Denied1.Motion for Reconsideration12.133a.Effect of Motion on Timing to File Appeal12.134b.Subsequent Motion for Same Order12.135c.Jurisdiction to Hear Motion12.136d.Denial of Motion12.137e.Sanctions12.138f.Appeal12.1392.Courts Inherent Power to Reconsider12.140G.Motion for Relief Under CCP 473 (Mistake, Inadvertence, Surprise, Neglect)12.141X.SANCTIONSA.Availability of Sanctions12.1421.When Sanctions Are Not Available12.1432.Discovery Motions12.144B.Moving for Sanctions Under CCP 128.71.Motion Must Be Made Separately12.1452.Safe Harbor Provisions12.146XI.SEALING OF COURT RECORDSA.Standards and Procedures Generally12.1471.Applicable Rules of Court12.1482.Definitions12.1493.Court Records Presumed to Be Open12.150B.Procedures for Filing Records Under Seal1.Court Approval Required12.1512.Motion or Application to Seal a Recorda.Motion or Application12.152b.Express Factual Findings Required to Seal Records12.153(1)Facts Establishing Overriding Interests12.154(2)Facts Failing to Establish Overriding Interests12.155c.Service12.1563.Lodging of Records12.1574.Trial Records Subject to Confidentiality Agreement or Protective Order12.1585.Sealing Ordera.Content and Scope of Order12.159b.Procedure on Grant or Denial of Order12.160C.Custody of Sealed Records12.161D.Custody of Voluminous Public Agency Records12.162E.Motion, Application, or Petition to Unseal Records12.1631.Who May Move to Unseal Records12.1642.Documents Supporting and Opposing Motion12.1653.Court Order Unsealing Records12.166F.Request for Delayed Public Disclosure12.167G.In Camera Confidential Proceedings1.Minutes of Proceedings12.1682.Disposition of Examined Records12.169XII.FORMSA.Moving Partys Forms1.Form: Notice of Motion12.1702.Form: Memorandum in Support of Motion12.1713.Form: Declaration Supporting Motion12.1724.Form: Request for Judicial Notice12.1735.Form: Application for Order Shortening Time; Order12.1746.Form: Proposed Order Shortening Time12.1757.Form: Stipulation Extending Time12.176B.Opposing Partys Forms1.Form: Memorandum in Opposition to Motion12.1772.Form: Declaration Opposing Motion12.178C.Notice of Ruling and Orders1.Form: Notice of Ruling on Motion12.1792.Form: Proposed Order12.1803.Form: Application for Order Extending Time12.1814.Form: Proposed Order Extending Time12.1825.Form: Order12.183I. INTRODUCTION 12.1 A.Scope of ChapterThis chapter covers general aspects of the noticed motion procedure. Specific format and timing requirements applicable to particular motions are noted in the other chapters of this book that discuss those motions. This chapter discusses tactical objectives and client consultation (see 12.512.6), the notice of motion (see 12.1712.43), supporting documents (see 12.4412.81), time for making the motion and shortening and extension of time (see 12.712.16), service and filing (see 12.8212.90), opposing the motion (see 12.9112.109), the reply (see 12.11012.111), hearings (see 12.11212.122), rulings and orders (see 12.12412.141), sanctions (see 12.14212.146), sealing of court records (see 12.14712.169), and forms (see 12.17012.183).Chapter 13 discusses ex parte applications for orders. Summary judgment motions are discussed in chap 36. Motions to disqualify a judge under CCP 170.6 are discussed in California Trial Practice: Civil Procedure During Trial (3d ed Cal CEB). Motions regarding discovery are discussed in California Civil Discovery Practice (4th ed Cal CEB).B. Governing Law12.21.StatutesMotions, notices of motion, and orders in general are governed by CCP 10031020: Definitions (CCP 1003). Court in which motion should be made (CCP 166 and 1004). Motions requiring written notice; time periods for making or opposing written motions (CCP 1005). When motion deemed made (CCP 1005.5). Transfer to another judge (CCP 1006). Appearance of counsel by telephone (CCP 367.5). Motions to reconsider (CCP 1008). Content of the notice of motion (CCP 1010). Filing and service (CCP 10111020). Rules governing filing by fax (CCP 1010.5). Rules regarding electronic filing and service (CCP 1010.6, 1013(g)). Method and place of service (CCP 1011). Service by mail (CCP 10121013a). Appearance by answer, demurrer, or written notice (CCP 1014). Service on party without attorney or on nonresident appearing by attorney (CCP 1015). Provisions not applicable to service of summons (CCP 1016). Service by telegraph (CCP 1017). Print size of notice or publications (CCP 1019). Service of notice of courts decision (CCP 1019.5). Service of notice by registered mail (CCP 1020). A number of additional sections of the California Code of Civil Procedure deal with specific types of motions. For example, discovery motions are governed by several specific procedures and requirementsset out in CCP 2016.0102036.050. 12.32.California Rules of CourtThe Civil Law and Motion Rules are set forth in Cal Rules of Ct 3.11003.1312. They comprise a comprehensive set of rules that apply to all civil law and motion proceedings. Cal Rules of Ct 3.1100. The rules cover the following: Format and filing of papers (Cal Rules of Ct 3.11003.1302). General format (Cal Rules of Ct 3.1110). Motions and other pleadings (Cal Rules of Ct 2.111(4)(6), 3.11123.1113, 3.1324). Memorandum in support of motion (Cal Rules of Ct 3.1113). Miscellaneous papers (Cal Rules of Ct 3.1115). Deposition testimony (Cal Rules of Ct 3.1116). Time for filing and service of motion (Cal Rules of Ct 3.1300). Place and manner of filing (Cal Rules of Ct 3.1302). Hearings (Cal Rules of Ct 3.13043.1310). Time of hearing (Cal Rules of Ct 3.1394). Oral testimony and judicial notice (Cal Rules of Ct 3.1306). Tentative ruling procedures (Cal Rules of Ct 3.1308). Reporting of proceedings (Cal Rules of Ct 3.1310). Particular motions (Cal Rules of Ct 3.13203.1384). Miscellaneous provisions (Cal Rules of Ct 3.12003.1207, 3.13003.1312). Rules adopted by the Judicial Council cannot be inconsistent with statute. Cal Const art VI, 6. To comply with the requirement of consistency, a rule of court may not conflict with the intent of a statute.People v Hall(1994) 8 C4th 950; Trans-Action Commercial Investors, Ltd. v Firmaterr, Inc. (1997) 60 CA4th 352. See also California Court Reporters Assn v Judicial Council(1997) 59 CA4th 959.12.43.Applicability of Local Court Rules and PoliciesThe Judicial Council has adopted Cal Rules of Ct 3.20, which preempts local court rules relating to pleadings, demurrers, ex parte applications, motions, discovery, provisional remedies, and the form and format of papers. Cal Rules of Ct 3.20(a). It does not, however, apply to certain proceedings, suchas those in family law, probate, or criminal proceedings, and it does not preempt local rules adopted under the Trial Court Delay Reduction Act (Govt C 6860068620). Cal Rules of Ct 3.20(b). See also Volkswagen v Superior Court(2001) 94 CA4th 695, 703 (local rules that manage complex litigation arenot preempted). On preemption of local rules generally, see 11.2.PRACTICE TIP:Because trial courts still have authority to make rules in areas that potentially affect motion practice (e.g., management of fast-track cases), counsel should continue to check local rules before filing a motion. See, e.g., Los Angeles Ct R 3.26, App 3.A(h) (counsel should attempt to resolve issue with opponent before filing motion). In addition, some courts also have policy or procedure manuals on motions and particular kinds of proceedings, and occasionally individual judges or departments issue policy statements. But see Lokeijak v City of Irvine(1998) 65 CA4th 341 (trial courts guideline on summary judgment motions invalidated; guideline was actually rule that conflicted with CCP 437c).Local rules can be found on the courts website. For a listing of local rules websites, see http://www.courts.ca.gov/3027.htm.12.5C.Tactical ObjectivesMotions are tactical tools, and the attorneys decision to seek an order should be made in the context of the partys overall litigation plan. Making a motion entails time, effort, and expense for the moving party.An attorney deciding whether to make a motion, or what motion to make, may engage in a cost-benefit analysis: Does the anticipated benefit (after being discounted for the possibility of losing the motion and the disadvantage of educating the adversary) outweigh the expense (in time and money) of making the motion? How does that differential compare with those produced by a similar analysis of alternatives to the motion?Factors to be evaluated include the following: The significance of a successful motion to the ultimate outcome of the case. The likelihood of success. The danger of alerting the adversary to issues that may not have surfaced until later. PRACTICE TIP:There may be an advantage to taking a deposition before making a motion. In some cases, an early motion may save the moving party effort and expense. In others, it is better to delay filing a motion until after investigation and discovery or after an adversary is committed to a position. Some motions can be postponed until it is too late for the adverse party to correct the defect that the motion exposes. The favorable and permitted time to make the motion. PRACTICE TIP:Delay may create the risk that adversaries will oppose the motion on grounds of laches (see Benjamin v Dalmo Mfg. Co. (1948) 31 C2d 523, 531; Corcoran v City of Los Angeles(1957) 153 CA2d 852, 856), or that the judge who rules on the motion will see the delay as intended to gain an advantage or create an inequity. The degree to which the motion will help or interfere with settlement possibilities. The cost of making the motion, in terms of money, effort, time, and continued amicability among counsel. Less costly measures that might achieve an acceptable result. PRACTICE TIP:The objective might be achieved by simply discussing the matter with, and obtaining the agreement of, opposing counsel. Many local court rules require the parties to meet and confer to try to resolve disputes before making a motion. See, e.g., Cal Rules of Ct 3.724; Los Angeles Ct R 3.25(b)(1). The overall effect of the motion on the judges view of the case. 12.6D.Consultation With ClientIt is usually good practice, and often good protection for counsel, to discuss with the client the possibility of making a motion. Some factors to be evaluated in deciding whether to make a motion or what motion to make involve matters that are not strictly legal evaluations and about which the client may have strong feelings, e.g., the costs involved. In any event, the client who is involved in the litigation decision-making process is more likely to feel well represented. II.TIME FOR MAKING MOTION 12.7A.Timing ConsiderationsThere are two timing factors to consider before making any motion: (1) as a procedural matter, when the motion can be made (including when papers can be served and when the hearing can take place); and (2) as a tactical matter, when the motion should be made. The first factor is discussed in 12.812.10. The second factor must be evaluated in the context of the tactical objectives of the entire lawsuit (see 12.5).12.81.Statutory and Rule Restrictions on Timing of MotionsSeveral restrictions affect the choice of the date to serve and to file motion papers and the date to noticefor the motion hearing. The statute or rule that provides for a particular order may set a deadline. Examples include the following: A demurrer must be served and filed within 30 days after service of the summons and complaint. CCP 430.40(a). A notice of motion to compel further answers to interrogatories must be served within 45 days after service of the verified response to the interrogatories (unless extended by the parties by written agreement). CCP 2030.300(c). Motions for reconsideration or to amend an order based on new facts must be made within 10 days after service of written notice of entry of the order. CCP 1008(a). Under CCP 2024.020(a), discovery motions must be heard at least 15 days before the date initially set for trial. For discussion of discovery motions, see California Civil Discovery Practice (4th ed Cal CEB); Handling Motions to Compel and Other Discovery Motions (Cal CEB Action Guide). If the moving papers are served or filed after the appropriate deadline, the court can deny the motion as untimely and an appellate court can overturn an order granting the motion.Conversely, some motions are untimely if made too early. Examples include the following: A notice of motion for summary judgment can be made no sooner than 60 days after the adversepartys appearance in the action (see CCP 437c(a); see chap 36). A motion to dismiss can be made no earlier than 2 years after the complaint was filed (see, e.g., CCP 483.410(b), 583.420(a)(2)(B); Cal Rules of Ct 3.1340; see chap 39). Motions to strike and demurrers directed to the same pleading should be noticed for hearing simultaneously. Cal Rules of Ct 3.1322. Regarding demurrers, see chap 23; regarding motions to strike, see chap 24. 12.92.Calculating Effect of Service on Timing of MotionCounsel must also determine how long before the hearing on a motion the notice of motion must be served and filed. Written notice of hearing must be personally served at least 16 court days before the appointed time for the hearing, unless a judge has granted an order shortening time. CCP 1005(b); CalRules of Ct 3.1300(a). On timing for methods other than personal service, see 12.10. For some motions, a different period may be required. See, e.g., chap 36 on summary judgment motions.WARNING:Setting a hearing too many days in the future could constitute improper delay. See CCP 128.7(b)(1). See 12.5.PRACTICE TIP:Although the adoption of Cal Rules of Ct 3.20 limits the local courts authority to makerules concerning motions, local rules that are within the rule-making authority of the trial courts may still affect motion practice. Thus, counsel should consult local rules or the court clerk about the appropriate department for a motion hearing as well as times and dates on which the court hears motions. See, e.g., Los Angeles Ct R 3.4(a), 3.5 (time of hearing and filing of papers). 12.103.Effect of Service by Methods Other Than Personal DeliveryMoving and supporting papers, including a written notice of motion, must be filed and served at least 16 court days before the hearing, if service is by personal delivery. CCP 1005(b). Section 1005(b) prescribes increases in the period of notice when service is by methods other than personal delivery in lieu of the time extension provisions of CCP 1013, which do not apply to a notice of motion, opposition papers, or reply papers. CCP 1005(b).If service is by mail, the 16-court-day notice period is increased by (CCP 1005(b)) 5 calendar days if the place of mailing and the place of address are in California; 10 calendar days if either place of mailing or the place of address is outside California but in theUnited States; and 20 calendar days if either the place of mailing or the place of address is outside the United States. If service is by fax, the notice period is increased by 2 calendar days. CCP 1005(b). On fax service generally, see CCP 1013(e)(f); Cal Rules of Ct 2.3002.306; 18.1618.22.If service is by express mail or some other method of overnight delivery, the notice period is increased by 2 calendar days. CCP 1005(b). On service by mail or overnight delivery, see 18.818.12.If service is electronic, the notice period is increased by 2 court days. CCP 1010.6(a)(4); Cal Rules of Ct 2.251(f)(2). On electronic service, see CCP 1010.6, 1013(g); Cal Rules of Ct 2.2502.259; 18.2318.40.PRACTICE TIP:For electronic service, CCP 1010.6(a)(4) extends any period of notice or any time for exercising any right or performing any duty to do an act or make a response by 2 court days, unless a statute or court rule provides otherwise. Although CCP 1005(b) expressly states that the provisions of CCP 1013 extending the time within which a right may be exercised or an act may be done do not apply to a notice of motion, opposition papers, or reply papers (and provides its own extension periods for service by mail, fax, express mail, and overnight delivery), it does not mention CCP 1010.6 or electronic service. The safest course would seem to be to add the 2-court-day extension of CCP 1010.6(a)(4) to the 16-court-day minimum notice period prescribed by CCP 1005(b).12.11B.Shortening TimeTo obtain a hearing date on a motion that is sooner than would otherwise be possible under normal procedures (see 12.712.10), a stipulation must be obtained from the opposing party (see 12.12) or an order shortening time must be obtained from the court (see 12.13).12.121.By StipulationThe parties may agree to shorten the time necessary for a notice for the hearing of a motion. Any stipulation should be in writing.Before seeking or obtaining a stipulation, however, counsel should contact should the court clerk in the courtroom where the hearing will be held to learn of any local requirements or practices with regard to such stipulations and the early setting of a hearing. Because it is best to have a stipulation specify the date, time, and place of the hearing, counsel should determine in advance that the court can accommodate the date, time, and place agreed on by the parties.If such an agreement can be reached between the parties, a stipulation should be prepared, signed, and submitted to the court as promptly as possible. Counsel should consult local court rules or policies in connection with stipulations.12.132.By Application for Order Shortening TimeIf a stipulation for shortening time is not possible or practical to obtain, counsel must seek an order shortening time through a formal application to the court. An application for an order shortening time must be supported by an affidavit or declaration showing good cause. Cal Rules of Ct 3.1300. In other words, counsel must demonstrate that the moving party would suffer some substantial prejudice or harm without the motion being heard on shortened time. On ex parte applications, see chap 13. Although applications to shorten time are usually made by moving parties, they can also be made by a responding party that desires an earlier hearing date than that specified in the moving partys notice of motion.PRACTICE TIP:The order shortening time should be drafted to address the following: (1) when motion papers are to be served, (2) when opposition papers are due, (3) when reply papers are due, (4) how papers are to be served (e.g., by hand delivery), and (5) the date of the hearing.12.14C.Extending TimeWhen it is desired to file a notice of motion, or to seek a hearing on a motion on a date that is after the last date prescribed by statute or rule, it is necessary to obtain an extension either from opposing counsel, in writing, or from the court.12.151.By StipulationThe parties may agree, by stipulation, to extend the time to serve and file motions, or the time for hearing on a motion. It is safest to prepare a formal stipulation, signed by both parties, for this purpose. Local court rules or policies should also be consulted in connection with these stipulations, and they may not be favored under current delay reduction rules.12.162.By MotionIf the parties will not agree to stipulate, counsel must apply to the court for an extension of time. See Cal Rules of Ct 2.20. Counsel must present the application for an order extending time to the judge before whom the action, motion, or other proceeding is pending, or, if that judge is absent or not able tohear it, to another judge of the same court. Cal Rules of Ct 2.20(a). The application must disclose the nature of the case and any prior extension granted by stipulation or court order. Cal Rules of Ct 2.20(b).After the order has been signed, it must be filed immediately and copies served within 24 hours unless the judge has set a different time. Cal Rules of Ct 2.20(c).Be sure to consult local rules regarding extensions. On ex parte applications, see chap 13.III.NOTICE OF MOTION AND MOTION 12.17A.Motion DefinedA motion is an application for an order from a court or judge, to be made or entered in writing and not included in a judgment. CCP 1003. Making a motion is the process of applying for an order. A motion is deemed to have been made, and to be pending before the court, on all the grounds stated in the notice of motion when the moving party has served and filed the notice of motion. CCP 1005.5. Insome circumstances, custom or statute may dictate that the order to show cause procedure be used (see chap 13), but the effect of these two procedures is the same. See Marriage of Nadkarni(2009) 173 CA4th 1483, 1499 (order to show cause constitutes notice of motion).12.18B.Necessary PapersRequired motion papers include a notice of motion (see 12.1912.43), a supporting memorandum (see 12.4412.58), and, if appropriate, the presentation of evidence by declarations (or affidavits) or other means (see 12.5912.75). See Cal Rules of Ct 3.1112. These papers may be filed as separate documents or combined in one or more documents. If items are combined, they must be listed separately in the caption. See example of Notice of Motion and Motion format in 12.170.Certain motions may require additional papers. See, e.g., CCP 437c(b)(1) (summary judgment or summary adjudication motions) (see chap 36); CCP 425.16 (anti-SLAPP motions) (see chap 24A); Cal Rules of Ct 3.1345 (motions to compel discovery) (see California Civil Discovery Practice, chap 15 (4th ed Cal CEB)). 12.19C.Notice of Motion and MotionThe notice of motion is the formal statement that identifies the time, date, and place of the hearing, the nature of the order being sought, the grounds for the motion, and the documents and other items that support the motion. CCP 1010.NOTE:Under Cal Rules of Ct 3.1112, a motion that is largely duplicative of the notice of motion must be filed in addition to the notice of motion, even though CCP 1005.5 provides that a motion is deemed made on serving and filing of the notice of motion, and many of the specific statutes authorizing the filing of a motion only require the filing of a notice of motion. See, e.g., CCP 418.10 (defendant may file notice of motion to quash service of summons or to stay or dismiss action on inconvenient forum ground) and CCP 435 (any party may file notice of motion to strike pleading). It therefore appears that the notice of motion and motion may be combined in a single document titled Notice of Motion and Motion.The Notice of Motion and Motion must conform to the general form and format requirements that apply to all court papers. See chap 11. See example of Notice of Motion and Motion format in 12.170. 1. Physical Formatting12.20a.Paper, Print, Spacing, and MarginsCalifornia Rules of Ct 2.1002.119 generally set the format rules for forms. The paper must be opaque, unglazed, white, or unbleached (Cal Rules of Ct 2.103). In addition, only one side of the paper may be used. Cal Rules of Ct 2.102.The type must be 12-point with a typeface equivalent to Courier, Times Roman, or Helvetica, and the printed color must be blue-black or black. Cal Rules of Ct 2.104.The lines must be one and one-half spaced or double spaced and numbered consecutively. Cal Rules of Ct 2.108(1), (4). The left margin must be at least one inch and the right margin must be at least inch. Cal Rules of Ct 2.107.Additions, deletions, or interlineations must be initialed by the clerk or judge at the time of filing. All copies served must conform to the original filed with the court, including the numbering of lines, pagination, additions, deletions, and interlineations. Cal Rules of Ct 2.110.12.21b.BindingThe pages of each document and exhibit must be attached at the top in a way that allows the pages to be turned easily and the entire page to be read. Cal Rules of Ct 3.1110(e). The pages must be top-punched and firmly bound together at the top. Cal Rules of Ct 2.113, 2.115. 12.22c.FooterDocuments bound together must be consecutively paginated. Cal Rules of Ct 3.1110(c). Pages must be consecutively numbered at bottom. Cal Rules of Ct 2.109. Except for exhibits, each paper filed with thecourt must bear a footer, printed in at least 10-point type, in the bottom margin of each page, below the page number and divided from the rest of the page by a printed line, that contains the title of the paper (e.g., Defendant ABC Corp.s Motion for Summary Judgment) or some clear and concise abbreviation. Cal Rules of Ct 2.110. 2. Information Required in Caption12.23a.Attorney InformationThe first page of the notice must state the name, address, telephone number, fax number (optional), e-mail address (optional), and State Bar number of the attorney or of the party if he or she is appearing in propria persona. Cal Rules of Ct 2.111(1). See example of Notice of Motion and Motion format in 12.170. 12.24b.Title of CourtThe attorney information should be followed by the title of the court. Cal Rules of Ct 2.111(3). Below the title of the court, the caption in every pleading in a limited civil case must state Limited Civil Case. See Cal Rules of Ct 2.111(9). See example of Notice of Motion and Motion format in 12.170. 12.25c.Telephone AppearanceThe line Telephone Appearance should be added below the title of the moving papers by a moving party who wishes to attend the hearing by telephone. Cal Rules of Ct 3.670(h)(1)(A). See CCP 367.5. Counsel generally has the option of appearing by telephone in any hearing or conference at which witnesses are not expected to be called to testify. Cal Rules of Ct 3.670(b)(c) (rule applicable to general civil cases, unlawful detainer cases, and probate proceedings). See also Cal Rules of Ct 3.670(f) (court discretion to modify Cal Rules of Ct 3.670 rule). Local rules may provide procedures for appearance by telephone. See Cal Rules of Ct, Standards of J Admin 3.1(d).12.26d.Title of CaseBelow the title of the court, in the space to the left, the motion should state the title of the case. Cal Rules of Ct 2.111(4). Motion papers may include the short caption of the case, i.e., the name of the first party on each side. See Cal Rules of Ct 2.111(4). See example of Notice of Motion and Motion format in 12.170. 12.27e.Nature of PaperTo the right of the case name, the caption should include a statement of the nature of the paper, i.e., a brief description of the nature of the order sought, e.g., Notice of Motion and Motion for Judgment on the Pleadings. Cal Rules of Ct 2.111(6). See example of Notice of Motion and Motion format in 12.170. 12.28f.Date, Time, Location of HearingBelow the identification of the document, the caption should show the date, time, and location (if ascertainable) of any scheduled hearing, the name of the hearing judge (if ascertainable), the date of filing of the action, and the trial date, if one is set. Cal Rules of Ct 3.1110(b). See example of Notice of Motion and Motion format in 12.170.12.29(1)Date and TimeThe notice of motion must state when the motion will be made. CCP 1010. The date set for hearing the motion and the time when the hearing calendar for that day will be called must be included in the caption. Cal Rules of Ct 3.1110(b). Failure to specify a date and time renders the notice ineffective. Bohn v Bohn (1913) 164 C 532, 536. See example of Notice of Motion and Motion format in 12.170.PRACTICE TIP:When drafting a notice of motion, counsel can determine the hearing date to specify in it by (1) deciding when the notice will be served (i.e., the date of delivery or mailing to adverse counsel); (2) computing the minimum notice time required (unless an order shortening time is obtained) and any maximum time; and (3) telephoning the court clerk or law and motion calendar clerkto learn the first available convenient calendar date within the period. See 12.712.10 on computing notice time, and 12.1112.16 on shortening and extending time.Counsel should consult local rules to determine the courts days and times for hearings. 12.30(2)LocationLocation is shown by specifying the department in which the hearing is to take place in the caption. See Cal Rules of Ct 3.1110(b). Attorneys should add the address at the end of the first paragraph of the notice, but need not include it in the case caption itself. See example of Notice of Motion and Motion format in 12.170.Motions must be made in the court in which the action is pending. CCP 1004. The place for the hearing is usually either (1) the courtroom of the judge assigned to the case or (2) the law and motion or other department or division established for such hearings. If there is any doubt as to where a motionshould be noticed for hearing, counsel should review the local rules or consult the appropriate court clerk. See, e.g., San Francisco Ct R 8.2 (law and motion calendar). 12.31g.Name of Hearing JudgeThe notice of motion must specify the name of the hearing judge, if available, immediately below the case number in the case caption. Cal Rules of Ct 2.111(7), 3.1110(b).PRACTICE TIP:When law and motion matters are assigned to a particular department, the notice of motion should specify the name of the judge who normally sits in that department. If the case has been assigned to one judge for all purposes, that judges name should be specified.The notice of motion should also note whether the proceeding is pending before a referee appointed under CCP 638 or 639. Cal Rules of Ct 2.111(9).California Civil Procedure Before Trial 12 Noticed Motions 12.32h.AttachmentsThe first page, immediately below the number of the case, must also state the nature of any attached document, other than an exhibit. Cal Rules of Ct 3.1110(b). When other papers, e.g., a memorandum or declarations, are attached to the notice of motion, these papers should be named in the caption. Cal Rules of Ct 3.1110(b). See example of Notice of Motion and Motion format in 12.170.12.333.Body of Notice of Motion and MotionThe motion must identify the party bringing the motion, name the parties to whom it is addressed, briefly state the basis for the motion and the relief sought, and if a pleading is being challenged, the portion being challenged must be specified. Cal Rules of Ct 3.1112(d). A typical format for the Motion and Notice of Motion is the following:PLEASE TAKE NOTICE that on _ _[date]_ _ at _ _[time]_ _ or as soon thereafter as the matter may be heard, in _ _[department]_ _ of the _ _[court]_ _ located at _ _[full address]_ _, _ _[e.g., plaintiff]_ _, _ _[name]_ _, will and hereby does move the Court for an order _ _[specify nature of order sought]_ _ under _ _[specify statute or rule authorizing motion]_ _ on the following grounds: _ _[state grounds, preferably in terms used in authorizing statute or rule; if more than one ground, list them as numbered or bulleted items]_ _.This motion is based on the attached documents and exhibits, including _ _[specify by title (or nature) and date, e.g., the declaration of _ _[name]_ _, dated _ _ _ _ _ _]_ _, _ _[and]_ _ on all papers filed and records in this action _ _[, and on any evidence received at the hearing]_ _.See example of Notice of Motion and Motion format in 12.170.12.34a.Introductory LineNo statute or rule requires an introductory line, but attorneys sometimes begin the body of the Notice ofMotion with To all parties and their attorneys of record. 12.35b.Nature of Order SoughtThe opening paragraph of the notice must state the nature of the order being sought. Cal Rules of Ct 3.1110(a), 3.1112(d). If monetary sanctions are sought, whether against the party or a party and its counsel, the notice of motion must identify every person, party, and attorney against whom the sanctionis sought. See, e.g., Blumenthal v Superior Court(1980) 103 CA3d 317 (case predated CCP 2023.040 but is probably still applicable under present statutes). See also Cal Rules of Ct 3.1112(d). See example of Notice of Motion and Motion format in 12.170.PRACTICE TIP:It is sometimes useful to begin the process of motion drafting by starting with a draft of the order being sought, which may help focus the research and drafting of the other motion papers. 12.36c.Grounds for Issuance of OrderThe opening paragraph of the notice of motion must state the grounds on which the motion is made. CCP 1010; Cal Rules of Ct 3.1110(a), 3.1112(d). The statement should define the issues for the adverse party and the court. Hernandez v National Dairy Prods. Co. (1954) 126 CA2d 490, 493. It is good practice to specify the code section or rule that provides for the order sought. See example of Notice of Motion and Motion format in 12.170. 12.37(1)Effect of Failure to State GroundsA failure to state grounds for the motion may lead the judge to deny the motion or an appellate court to vacate an order granting the motion. See Traders Credit Corp. v Superior Court (1931) 111 CA 663, 665 (dismissal vacated). Some courts, however, have granted motions, or upheld orders, even though no grounds were stated in the notice of motion, if the grounds clearly appeared from other papers filed with the notice. See 12.39. 12.38(2)Courts Consideration of Grounds Not Stated in MotionCourts also differ on whether grounds not stated in the notice of motion will be considered in support of the motion. Compare Taliaferro v Riddle(1959) 167 CA2d 567, 570 (reversal of order not supported by either ground specified in notice), Hernandez v National Dairy Prods. Co. (1954) 126 CA2d 490, 493 (if new matter could be argued at hearing, purpose of notice of motion would be only to advise time and place), and Westphal v Westphal(1943) 61 CA2d 544, 550 (when motion made on ground thatcase should be dismissed under mandatory 5-year dismissal statute, party cannot argue on appeal that court properly exercised discretion to dismiss for lack of diligent prosecution), with Tarman v Sherwin(1961) 189 CA2d 49, 51 (affidavits, supporting memorandums, and other documents in court file, whenreferred to in the Notice, can be considered in amplification of grounds). See also Josephson v SuperiorCourt(1963) 219 CA2d 354, 362 (statements in affidavits disregarded; leave needed to base motion on grounds not enumerated).These disparate holdings can be reconciled, as at least one court has done, by stating that (Luri v Greenwald(2003) 107 CA4th 1119, 1125)[a]s a general rule, the trial court may consider only the grounds stated in the notice of motion. [Citations.] An omission may be overlooked if the supporting papers make clear the grounds for relief sought. [Citations.] The purpose of these requirements is to cause the moving party to sufficiently define the issues for the information and the attention of the adverse party and the court. [Citation.]PRACTICE TIP:The best practice is to state the grounds in the notice of motion. 12.394.Identification of Papers Supporting the MotionA notice of motion must state the papers, if any, on which it is to be based. CCP 1010. It is customary to also state that the motion will be based on all pleadings, papers, and records filed in the action. This statement may persuade the judge at the hearing to consider a document in the case file, the significance of which was not recognized when the motion papers were filed. However, if counsel knows that part of a pleading or other paper supports the motion, or provides basis for argument, it is good practice to identify that part in the memorandum or declaration accompanying the notice, or to attach a copy to the moving papers as an exhibit. See example of Notice of Motion and Motion format in 12.170.It is routine to refer to the attached memorandum in support of the motion that must be filed with the motion. See Cal Rules of Ct 3.1112. See 12.4412.58. Similarly, the evidence on which a motion is based is usually presented to the judge in the form of affidavits or declarations (see 12.5912.75) andthe notice of motion should refer to each such document, e.g., the attached affidavit of Walter Johnson, or the attached declarations of Walter Johnson, Charles Able, and George Smith. When a declaration in support of a motion is required by statute or rule, the notice should refer to the attached declaration. See, e.g., CCP 1008(b) (when similar motion has been made, declaration must state what motion was made before) and CCP 2025.480(b) (discovery motion). To the extent practicable, all supporting memorandums, declarations, and affidavits must be attached to the notice of motion. Cal Rules of Ct 3.1113(j).12.40a.Reference to Papers Previously Filed With CourtReference to papers previously filed with the court must be by date of execution and title. Cal Rules of Ct 3.1110(d). All references to exhibits or declarations in supporting or opposing papers must refer to the number or letter of the exhibit, the specific page, and if applicable, the paragraph or line number. Cal Rules of Ct 3.1113(k).WARNING:Some attorneys also routinely conclude the listing of papers on which a motion is based with a clause such as and such oral and documentary evidence as may be presented at the hearing on this motion. This reference may aid a later argument that testimony or a new exhibit should be admitted. However, most judges resist taking new evidence at the hearing. See 12.122. The court mustbe notified of a need to present evidence at the hearing by a written statement setting forth the nature and extent of the proposed evidence. Cal Rules of Ct 3.1306(a). Any request for leave to present evidence should be supported by a declaration of facts and reasons. If the need is known at the time the notice of motion is filed, the nature of the evidence should be specified in the notice and the reasons forits introduction stated in the attached declarations and memorandum. The notice or statement should also state how much hearing time presentation of the evidence will require. See Cal Rules of Ct 3.1306(a).12.41b.Papers Not Previously Served on Adverse PartyIf the notice of motion mentions a paper that has not yet been served on adverse parties, a copy of that paper must be served and filed with the notice. CCP 1010. 12.425.Date; SignatureThe date that a notice of motion is served is normally shown on an attached proof of service form. See 12.8212.86. Thus, although customary, it is not necessary to type a date on the notice. If the notice is served by mail, and is not accompanied by a certificate of mailing, the date and place of mailing must be typed or written on the notice of motion itself. CCP 1013(b).A notice of motion should be signed by the partys attorney of record, not the party. See Jansson v National S.S. Co. (1917) 34 CA 483, 486. A subscription by the attorneys associate or office is normally sufficient. See Caldwell v Geldreich(1955) 137 CA2d 78, 82 (vacationing attorneys name signed by associate). See also Buell v Buell (1891) 92 C 393, 396 (newly employed attorney signed notice; no general statute or rule requires that notices of motion be signed; absence of signature does not ordinarily vitiate notice). 12.43D.Checklist: Procedures for Motions and HearingsMoving party__Consult statute or rule that authorizes motion for information on:__Procedure required or permitted__Time limits for service or filing__Evidentiary showing required__Compute first and last day for service or filing (see 12.712.10).__If the period has passed, check statute or rule for late filing procedures.__Determine and comply with any meet and confer requirements. See Cal Rules of Ct 3.724; 40.51.__Check with court clerk, if appropriate, for availability of hearing dates, and for any local rules or customs relating to particular motion.__Prepare moving papers:__Notice of motion (see 12.1912.42)__Memorandum in support of motion (see 12.4412.58)__Declarations or affidavits, if needed (see 12.5912.75)__Exhibits, i.e., documents or papers not yet on file in action that bear on motion, if needed (see 12.7712.80)__Requests that court take judicial notice, if needed (see 12.81)__Proposed order, if needed (see 12.12512.127)__Application for order extending or shortening time, if needed (see 12.1112.16)__Any other required papers__Proof of service (see 12.8212.90)__Serve and file moving papers (see 12.8212.90).__Review opposition papers and serve and file reply or supplementary papers, if needed (see 12.110).__Check with court for tentative ruling if one has been made.__Make arrangements for court reporter to be at hearing (see 12.123).__Prepare for and attend hearing, and present the oral argument (and evidence, if permitted) in favor of motion (see 12.11212.122).__If favorable ruling is obtained, prepare notice of ruling or form of order, if needed (see 12.126).__Serve and file notice of ruling or signed order (unless done by court or otherwise unnecessary) (see 12.130). IV. SUPPORTING DOCUMENTS A. Memorandum in Support of Motion12.441.When Supporting Memorandum RequiredAll motions and demurrers must be supported by a memorandum that complies with Cal Rules of Ct 3.1113. Cal Rules of Ct 3.1112(a), 3.1113. A demurrer or written notice of motion under CCP 1005, except for a motion listed in Cal Rules of Ct 3.1114, must be accompanied by supporting memorandum. Cal Rules of Ct 3.1113(a). On motions not requiring a supporting memorandum, see 12.45. The absence of the memorandum may be construed by the court as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported. Cal Rules of Ct 3.1113(a).PRACTICE TIP:The supporting memorandum is used to convince the judge who hears the motion that the law and facts support issuance of the order sought. Persuasion is the object of the memorandum. Even though counsel may have a chance to present argument and cite authorities at the hearing on the motion (see 12.9712.122), some courts issue a tentative ruling based on the motion and response papers alone (see 12.12412.130), and in other courts the judge will come to the hearing with a ruling already in mind. The written memorandum should be the best argument for the motion that can be made; only in rare and unusual situations should a persuasive argument or point be held back for later use.12.452.Motions, Applications, and Petitions Not Requiring MemorandumCivil motions, applications, and petitions filed on Judicial Council forms that do not require a supporting memorandum include the following (Cal Rules of Ct 3.1114(a)): Application for appointment of guardian ad litem in a civil case; Application for an order extending time to serve pleading; Motion to be relieved as counsel; Motion filed in small claims case; Petition for change of name or gender; Petition for declaration of emancipation of minor; Petition for injunction prohibiting harassment; Petition for protective order to prevent elder or dependent adult abuse; Petition of employer for injunction prohibiting workplace violence; Petition for order prohibiting abuse (transitional housing); Petition to approve compromise of a claim of a minor or an incompetent person; and Petition for withdrawal of funds from a blocked account. Despite Cal Rules of Ct 3.1114(a), if it would further the interests of justice, a party may submit, or the court may order the submission of, a memorandum in support of any motion, application, or petition. The supporting memorandum must comply with Cal Rules of Ct 3.1113. Cal Rules of Ct 3.1114(b). 3. Format of Supporting Memorandum12.46a.Contents of Supporting MemorandumA supporting memorandum must contain (Cal Rules of Ct 3.1113(b)) the following: A statement of facts; A concise statement of the law; The evidence and argument relied on; and A discussion of the statutes, cases, and textbooks cited in support of the position being advanced. 12.47b.Format and StyleA case citation must include the official reports volume and page number and year of decision. No other citations may be required. Cal Rules of Ct 3.1113(c).The style used in a supporting memorandum shall be that set forth in Jessens California Style Manual (4th ed 2001), or that stated in the most recent edition of The Bluebook: A Uniform System of Citation,at the option of the party filing the document. The same style shall be used consistently throughout the memorandum. Cal Rules of Ct 1.200. 12.48c.Length of Supporting MemorandumAn opening or responding memorandum may not exceed 15 pages, except in a summary judgment or a summary adjudication motion, where they are limited to 20 pages. Cal Rules of Ct 3.1113(d). A reply may not exceed 10 pages. Cal Rules of Ct 3.1113(d). The page limit does not include exhibits, declarations, attachments, a table of contents, a table of authorities, or the proof of service. Cal Rules ofCt 3.1113(d).Permission to file memorandums of greater than the specified number of pages can be sought by ex parte application at least 24 hours before the memorandum is due. Cal Rules of Ct 3.1113(e). The application must state the reasons the argument cannot be made within the page limits. Cal Rules of Ct 3.1113(e).PRACTICE TIP:Some judges require that the memorandum be already prepared and presented to the court at the ex parte hearing so that the court can assess the true need. Applications for permission to file memorandums exceeding the specified number of pages may be granted by a judge, but rarely as a matter of course.The memorandum should be concise and not unduly detailed or repetitive. Most judges hearing motions have very limited time available for reading papers and they appreciate well-written, to-the-point papers.A supporting memorandum that exceeds the page limits of Rule 3.1113(d) is filed and treated the same as a late-filed paper. Cal Rules of Ct 3.1113(g).12.49d.Table of Contents; Table of AuthoritiesIf the supporting memorandum exceeds 10 pages, it must include a table of contents and a table of authorities. If it exceeds 15 pages, it must also include an opening summary of argument. Cal Rules of Ct 3.1113(f). See 12.52.If the supporting memorandum includes a table of contents and table of authorities, the caption page or pages must not be numbered; the pages of the tables must be numbered consecutively, using lower-caseRoman numerals starting on the first page of the tables; and the pages of the text must be numbered consecutively using Arabic numerals starting on the first page of the text. Cal Rules of Ct 3.1113(h). IV. SUPPORTING DOCUMENTS A. Memorandum in Support of Motion12.441.When Supporting Memorandum RequiredAll motions and demurrers must be supported by a memorandum that complies with Cal Rules of Ct 3.1113. Cal Rules of Ct 3.1112(a), 3.1113. A demurrer or written notice of motion under CCP 1005, except for a motion listed in Cal Rules of Ct 3.1114, must be accompanied by supporting memorandum. Cal Rules of Ct 3.1113(a). On motions not requiring a supporting memorandum, see 12.45. The absence of the memorandum may be construed by the court as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported. Cal Rules of Ct 3.1113(a).PRACTICE TIP:The supporting memorandum is used to convince the judge who hears the motion that the law and facts support issuance of the order sought. Persuasion is the object of the memorandum. Even though counsel may have a chance to present argument and cite authorities at the hearing on the motion (see 12.9712.122), some courts issue a tentative ruling based on the motion and response papers alone (see 12.12412.130), and in other courts the judge will come to the hearing with a ruling already in mind. The written memorandum should be the best argument for the motion that can be made; only in rare and unusual situations should a persuasive argument or point be held back for later use. 12.504.Organization of Supporting MemorandumThe typical organization of a supporting memorandum begins with an introductory section, includes one or more separate sections focusing on particular aspects of the motion, and ends with a concluding summary. The function of each of these portions of the memorandum is discussed separately in 12.5112.57.12.51a.Introductory Statement; IntroductionAfter the case caption, the memorandum usually begins with an introductory sentence that identifies the moving party or parties and the motion being supported. This can be done with a statement such as the following:Defendant Pan-Pacific Machinery and Foundry, Inc., hereafter Pan-Pacific, submits the following memorandum in support of its motion requiring Plaintiff Kimberly Wilson to furnish security for costs.This is often an easy way to establish the shorthand reference to the moving party or parties used later in the supporting memorandum (e.g., as Plaintiff, Defendant, or by a last name or abbreviated name).PRACTICE TIP:It is generally good practice to include, following the introductory statement, a section labeled Introduction, whose purpose is to very briefly define the nature of the motion being made andits context. Doing so usually requires a brief description of the lawsuit and of the motion and its purpose. This introduction should be succinct and should convey to the judge who is reading the motion the importance of the motion to the case. If a separate summary of the argument is not included (see 12.52), the introductory section can also briefly summarize or state why the motion should be granted. b. Argument12.52(1)Summary of ArgumentAny memorandum that exceeds 15 pages must contain an opening summary of argument. Cal Rules of Ct 3.1113(f). This is rare because memorandums may not exceed 15 pages without leave of court. See Cal Rules of Ct 3.1113(d). If appropriate, the summary of argument should be relatively short, and it is best to have a separate heading identifying it as a summary of the argument.NOTE:For the footer requirements, see Cal Rules of Ct 2.110 and 12.22.12.53(2)Concise and Persuasive ArgumentAfter the introductory section or sections, the supporting memorandum should include one or more separate sections dealing with the specifics of the arguments being made. The arguments should be divided into separate sections, with captions, each dealing with a specific issue or point. Each section should be relatively short. If the argument on one topic must be lengthy, it is often good practice to divide it into subsections with subheadings. Separate sections and separate subheadings allow for the judge reading the motion to more easily follow the arguments and points being made and also to more easily return to a specific argument if the judge wishes to reread a particular point.The captions or subcaptions for separate argument sections should be descriptive (and accurately identify the argument being made) and be as brief and concise as possible. Phrase the captions and subcaptions in an argumentative manner, i.e., as an assertion in favor of the moving party (e.g., The facts demonstrate that there was no privity between plaintiff and defendant rather than simply Privity or Lack of privity). Sometimes, however, especially with subheadings, short subject matter captions are sufficient.12.54(3)Applicable Statutes and CasesThe supporting memorandum must contain both a concise statement of the law and a discussion of the applicable statutes and cases. As a rule, counsel should look first to the statutes applicable to the legal issue involved in the motion. Those may include statutes defining the standards or requirements for the motion (e.g., CCP 437c for summary judgments) or the substantive legal standards involved in the case itself (e.g., the applicable statute of limitations).Next, counsel should research the applicable case law, both for the legal point or issue addressed in the motion and for the standards applicable for the type of motion being made.Each point or statement should be supported by citation to a statute, court rule, or reported decision. If these are not available, other authority may include textbooks or law review articles. Generally, it is more effective to cite one statute or case, and point out its specific applicability, than to support a point with string citations. A California Supreme Court opinion carries more weight than a court of appeal opinion unless the latter is more on point or more recent. Often, one Supreme Court citation and the latest court of appeal case provide all the support needed for a point unless it is important to show how a rule has been applied in a variety of factual settings. On citation format, see 12.47.JUDGES PERSPECTIVE:The supporting memorandum should clearly identify the important controlling cases and separate them from cases cited for preliminary or foundational matters. Cases believed to bear strongly on the particular matter should be discussed at length, commencing with California cases.It is better practice to set forth a brief summary or quotation of the relevant substance of the cited authority and to point out in what way it bears on the matter before the court than to provide a plethora of citations. A single case in point may be sufficient. The value of points made and the legal authorities supporting them lies in their current relevancy and not in their quantity. Each case cited for other than preliminary or elementary matters should be discussed in terms of its relationship to the case at bar.12.55(a)Improper Use of Repealed or Overruled Legal AuthorityCounsel may not misquote authorities or cite statutes that have been repealed or held unconstitutional or cases that have been overruled. Cal Rules of Prof Cond 5200.12.56(b)Using Authority From Jurisdictions Outside CaliforniaWhen the supporting memorandum cites federal cases, statutes, constitutional provisions, or rules, or cites authorities from jurisdictions outside California, the judge may require that a copy be attached to the papers and tabbed as an exhibit. Cal Rules of Ct 3.1113(i)(1). See 12.78. A party may request copies of the authorities and counsel must promptly provide them. Cal Rules of Ct 3.1113(i)(3). If a California case is cited before it is published in the advance sheets, the citation must include the title, case number, date of decision, and (if applicable) appellate district in which the case was decided. A judge may also require that a copy of the opinion be attached and tabbed. Cal Rules of Ct 3.1113(i)(2).12.575.ConclusionA concluding section that summarizes the major points and arguments made and states the nature of theorder or relief sought in the motion is customarily included. This type of section should be brief, and not a verbatim repetition of the points already made. 12.586.SignatureThere is no general requirement that a supporting memorandum be dated or signed. Most attorneys do date and sign them, and a common signature format is shown in 12.171. B. Declarations12.591.Declaration Compared With AffidavitDeclarations and affidavits are written statements used to present facts to the judge who will rule on themotion. Declarations are made and signed under penalty of perjury (see CCP 2015.5; see also 12.72),and affidavits are made under oath and attested to, ordinarily by a notary public (see CCP 2003). Declaration is used generally in this book to cover both a declaration under penalty of perjury and an affidavit. CCP 2015.5. In California, the declaration form, which need not be notarized, is more widely used than the affidavit form. A declaration in the form prescribed by CCP 2015.5 is as valid and effective in support of a motion as an affidavit. See 12.60 and form in 12.172.Whichever form is used, it is important that it conform strictly to content and execution requirements. Ajudge may disregard an improperly phrased or executed statement. See, e.g., Palm Springs Alpine Estates, Inc. v Superior Court(1967) 255 CA2d 883, 888. 12.602.Declaration as Substitute for Oral TestimonyWritten declarations are used in motion proceedings as a substitute for sworn oral testimony. See, e.g., Evid C 135, 225; Cal Rules of Ct 3.1306(a). Code of Civil Procedure 1005 requires that a written notice of motion be accompanied by supporting declarations.Motions are usually made and determined on declarations alone. See Cal Rules of Ct 3.1306(a); Beckett v Kaynar Mfg. Co. (1958) 49 C2d 695, 698 n3. Declarations are used both to provide factual matters for the decision on the motion and as a means for stating facts in a direct and logical order, sparing the judge the need to ferret them out of the case record. Some motions can be granted, of course, even though not supported by a declaration. See, e.g., Black Bros. Co. v Superior Court(1968) 265 CA2d 501, 507, disapproved on other grounds in Denham v Superior Court(1970) 2 C3d 557. Other motions require that a declaration be submitted. See, e.g., CCP 2023.010(i), 2023.020 (discovery motions); CCP 1008(b) (when prior similar motions have been made); Cal Rules of Ct 3.770 (request for dismissal of class action); Cal Rules of Ct 3.1342(a) (dismissal for failure to prosecute); Cal Rules of Ct 3.1360 (motion for lien on a cause of action or judgment).In exercising its power to exclude or permit oral testimony, the trial court follows the principal that constitutional due process entitles the parties to notice and hearing appropriate to the case. See Marriage of Nadkarni(2009) 173 CA4th 1483, 1499 (because application for restraining order under Domestic Violence Prevention Act was facially sufficient, dismissal reversed and case remanded for hearing on merits). IV. SUPPORTING DOCUMENTS A. Memorandum in Support of Motion12.441.When Supporting Memorandum RequiredAll motions and demurrers must be supported by a memorandum that complies with Cal Rules of Ct 3.1113. Cal Rules of Ct 3.1112(a), 3.1113. A demurrer or written notice of motion under CCP 1005, except for a motion listed in Cal Rules of Ct 3.1114, must be accompanied by supporting memorandum. Cal Rules of Ct 3.1113(a). On motions not requiring a supporting memorandum, see 12.45. The absence of the memorandum may be construed by the court as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported. Cal Rules of Ct 3.1113(a).PRACTICE TIP:The supporting memorandum is used to convince the judge who hears the motion that the law and facts support issuance of the order sought. Persuasion is the object of the memorandum. Even though counsel may have a chance to present argument and cite authorities at the hearing on the motion (see 12.9712.122), some courts issue a tentative ruling based on the motion and response papers alone (see 12.12412.130), and in other courts the judge will come to the hearing with a ruling already in mind. The written memorandum should be the best argument for the motion that can be made; only in rare and unusual situations should a persuasive argument or point be held back for later use. 3. Selecting Declarant12.61a.Tactical ConsiderationsThe attorney must make tactical decisions in determining who should submit a declaration in support ofa motion or how many declarations to submit. If a factual point needs to be established, it must, of course, be established by someone with sufficient personal knowledge that the declaration statements are competent evidence. See 12.65. The declarant who is in a position to verify or present the fact willprobably be the most persuasive, and if several facts are to be presented, it is usually advantageous and more efficient to have those facts addressed by as few witnesses as possible.There are, however, significant differences between trial testimony and fact finding through declarations. Declarations may be carefully drafted by counsel, whereas trial testimony tends to be spontaneous in its wording and depends on the witnesss particular personality, linguistic skills, and state of mind. Furthermore, a declarant in a written declaration will not ordinarily be able to be cross-examined on what is included in the declaration prior to the hearing on the motion.12.62b.Attorney as DeclarantWhether counsel should act as a declarant depends on the nature of the facts to be presented and the necessity of using the attorney for that purpose. The most common situations in which counsel presentshis or her own declaration are the following: When the declaration addresses communication between counsel; If the declaration presents copies of pleadings or discovery material (e.g., copies of documents produced, interrogatory answers, deposition transcripts); If a particular statute calls for a certificate that could be appropriately provided only by counsel (see, e.g., CCP 1008(b)); or If the facts presented involve the activities of counsel in the litigation (e.g., time spent and the cost of preparing or defending a motion when sanctions are sought). PRACTICE TIP:Counsel should be careful not to submit a declaration that addresses factual matter directly supporting or contradicting pleading allegations. Such a declaration would risk waiving any applicable attorney-client or work-product privileges.The California Rules of Professional Conduct preclude counsel from acting as an advocate for a party before a jury when counsel will also testify on substantive matters, at least without the clients informed, written consent. Cal Rules of Prof Cond 5210. Even without jury involvement, when counsel is expected to be a witness at trial (a concern if counsel is the best person to submit a substantive declaration as to facts), consideration should be given as to whether it is in the clients best interests to have counsel act in both capacities. On limitations of counsel acting as a witness, see 4.34. 4. Format of Declaration12.63a.CaptionA declaration is usually drafted as a separate paper, with the caption prescribed for court papers by Cal Rules of Ct 2.1002.119, even though it is attached to a notice of motion. A defect in the title of the action does not render the paper invalid or ineffectual if it intelligibly refers to the action. CCP 1046. The caption of a declaration must identify the name of the declarant (or affiant) and identify the motionor proceeding that it supports (or opposes). Cal Rules of Ct 3.1115(a). For example, a caption could read: Declaration of John Jones in Support of Plaintiffs Motion for Summary Judgment.NOTE:The requirement in Cal Rules of Ct 3.1110(b) that the date and time of hearing, the number or designation of the department or division to which it is assigned, the name of the hearing judge (if ascertainable), the date of filing of the action, and the trial date be stated (see 12.28) may apply to declarations as well as to the notices of motion to which they are attached. See Cal Rules of Ct 2.3(2).In an affidavit, it is customary to follow the caption with a line stating the venue, i.e., the state and county (or other subdivision) where the affidavit was executed and notarized. However, failure of the affidavit to show where the oath or affirmation of the affiant was administered does not by itself invalidate the affidavit. See County Bank v Jack (1906) 148 C 437, 440 (venue line omitted). The venue line or lines may, with equal effect, be placed at the beginning of the jurat or notarys certification.NOTE:For the footer requirements, see Cal Rules of Ct 2.110 and 12.22. 12.64b.Identity of DeclarantThe first paragraph of the body of a declaration usually identifies the declarant by stating his or her titleor relationship to the lawsuit. For example:1. I am the plaintiff, _ _[name]_ _, in this action.1. I am an attorney of record for defendant, _ _[name]_ _.1. I am, and have been since _ _[date]_ _, the Vice President in charge of marketing for defendant, _ _[name of, e.g., corporation]_ _.12.65c.Competence of DeclarantGenerally, anyone who would be competent to testify as a witness about a matter is competent to make a declaration. See McLellan v McLellan(1972) 23 CA3d 343, 359. In this context, competent usuallymeans that the declarant has personal knowledge of the subject matter of the declaration (see Evid C 702) or that the declarant qualifies as an expert on the subject matter of the declaration (see Evid C 720, 801). On admissibility of matter stated, see 12.68.In the second paragraph, many attorneys drafting declarations routinely include a statement attesting to the declarants personal knowledge, such as:2. I have personal knowledge of all facts stated in this declaration and, if called as a witness, I could and would testify competently to them under oath.Such a statement is a conclusion that may be disregarded by a judge who feels that personal knowledgemust be shown by factual statements. See Fisher v Cheeseman(1968) 260 CA2d 503, 506 ([t]hat which is required is not a sworn statement that the affiant would so testify but a showing that he can competently do so). Thus, the above statement is not a substitute for the inclusion of facts showing that the declarant has personal knowledge of the facts being sworn to. For example:3. I was at the corner of Fourth and Main Streets on _ _[date]_ _, and saw _ _[specify]_ _.3. On _ _[date]_ _, I received a letter by _ _[name]_ _, a true and complete copy of which is attached as Exhibit A.3. I am the custodian of records for Mercy Hospital. 12.66(1)Declarations Made On Information and BeliefA declarant, like a witness (see Evid C 702), should normally state only facts personally known to himor her. The statute authorizing the order sought may also specify that matter in declarations must be based on personal knowledge. See, e.g., CCP 437c (declarations on motion for summary judgment). Thus, a statement made on information and belief may be disregarded (Franklin v Nat C. Goldstone Agency(1949) 33 C2d 628, 631; Judd v Superior Court(1976) 60 CA3d 38, 43) unless the fact stated is one that by its nature could not be known directly and positively (e.g., anothers intent). See Brown vHappy Valley Fruit Growers, Inc. (1929) 206 C 515, 520; Fielder v Superior Court(1963) 213 CA2d 60. Statements made in declarations are presumed to be made on personal knowledge unless it is stated that they are made on information and belief. Weathers v Kaiser Found. Hosps. (1971) 5 C3d 98, 106. 12.67(2)Expert DeclarationsA declaration based on expert opinion should include information about the experts qualifications to make a showing that the declarant is competent to express an opinion about the subject matter of the declaration. 12.685.Admissibility of Matters StatedThe body of a declaration is a series of statements, usually set out in separately numbered paragraphs. The judge hearing the motion may decline to consider statements in a declaration on the same grounds that a trial judge would sustain an objection to proffered testimony. See McLellan v McLellan(1972) 23CA3d 343, 359; Mayo v Beber(1960) 177 CA2d 544, 551. Filing a declaration in support of a motion is normally the equivalent of offering it in evidence; it need not be offered formally in evidence at the hearing. See Waller v Waller(1970) 3 CA3d 456, 465.Declarations should state evidentiary facts rather than ultimate facts or legal conclusions. Ware v Stafford(1962) 206 CA2d 232, 237. The facts should be set forth positively; a declaration that states only the conclusions or opinions of the declarant is insufficient. See Tri-State Mfg. Co. v Superior Court(1964) 224 CA2d 442, 445. One test for whether a statement in a declaration should be considered is whether a perjury prosecution could be based on the statement if it were false. See Mack v Superior Court(1968) 259 CA2d 7, 10.PRACTICE TIP:An attorney drafting a declaration should consider not only the admissibility and persuasiveness of what is said, but also that the declaration may be used to cross-examine the declarant at a later deposition or at trial. The declaration must state enough factual matter to be persuasive in support of the motion, but it should not be repetitive or contain unnecessary detail.12.69a.Statements of OpinionOpinions stated in a declaration are sometimes considered when the declaration shows that The opinion is rationally based on the declarants perception and is helpful to a clear understanding of his or her testimony (see Evid C 800); or The declarant is qualified to testify as an expert on the subject (see Evid C 801). 12.70b.Hearsay StatementsHearsay statements may be disregarded unless admissible under an exception to the hearsay rule. See Pacific Air Lines, Inc. v Superior Court(1965) 231 CA2d 587. See also Weathers v Kaiser Found. Hosps.(1971) 5 C3d 98, 106 (although declarants statement might have been based on hearsay, it might also have been based on observation and, thus, could be considered under the presumption that itwas made on personal knowledge). 12.716.SubscriptionThe proper subscription for a declaration or affidavit is important because the court will disregard an incorrectly executed declaration or affidavit.12.72a.Declaration Under Penalty of PerjuryA declaration under penalty of perjury must be signed by the declarant and certified or declared to be true under penalty of perjury. CCP 2015.5. It is improper for an attorney to sign declarations under penalty of perjury on behalf of his or her clients or witnesses, even in family law court. Marriage of Reese & Guy(1999) 73 CA4th 1214, 1222. The certification or declaration may be in substantially the following form (CCP 2015.5):I declare under penalty of perjury under the laws of the State of California that the foregoing is true andcorrect.PRACTICE TIP:Either certify or declare can be used, but not both. See CCP 2015.5. Most attorneys use declare unless a particular statute calls for a certification or the paper is called a certificate. Other attorneys use certify when the declaration is signed by an attorney or court official. The phrase under the laws of the State of California can be omitted if the declaration is executed within California and the place of execution is stated.This statement is normally placed at the end of the declaration. See People v Pierce(1967) 66 C2d 53, 59 (end is preferred, not required). A statement declared to be made under penalty of perjury is acceptable even though true and correct has been omitted. See Pacific Air Lines, Inc. v Superior Court(1965) 231 CA2d 587. See also People v Pacific Land Research Co. (1977) 20 C3d 10, 21 n11 (declaration did not state place of execution or that it was made under penalty of perjury; address and signature sufficient to constitute compliance); People v Resolute Ins. Co. (1975) 46 CA3d 249, 256 (declaration missing date and place of execution sufficient when attached document contained date and place of execution). 12.73(1)Writing RequirementThe statement must be in writing, because subscribe as used in CCP 2015.5 means to sign with ones own hand. Thus, when a transcript of a telephone conversation with various witnesses was submitted, even though the witnesses said that their statements were true and correct under penalty of perjury, there was no compliance with 2015.5, and the transcripts were inadmissible as evidence. Stockinger v Feather River Community College(2003) 111 CA4th 1014, 1026. 12.74(2)Date of ExecutionThe date of execution must be stated. CCP 2015.5; People v United Bonding Ins. Co. (1969) 272 CA2d 441, 444. The court must disregard a declaration that lacks the required formalities (Baron v Mare(1975) 47 CA3d 304, 308) or when it is patently untrue (Krueger v Superior Court(1979) 89 CA3d 934, 939 (declaration predated matter verified)). IV. SUPPORTING DOCUMENTS A. Memorandum in Support of Motion12.441.When Supporting Memorandum RequiredAll motions and demurrers must be supported by a memorandum that complies with Cal Rules of Ct 3.1113. Cal Rules of Ct 3.1112(a), 3.1113. A demurrer or written notice of motion under CCP 1005, except for a motion listed in Cal Rules of Ct 3.1114, must be accompanied by supporting memorandum. Cal Rules of Ct 3.1113(a). On motions not requiring a supporting memorandum, see 12.45. The absence of the memorandum may be construed by the court as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported. Cal Rules of Ct 3.1113(a).PRACTICE TIP:The supporting memorandum is used to convince the judge who hears the motion that the law and facts support issuance of the order sought. Persuasion is the object of the memorandum. Even though counsel may have a chance to present argument and cite authorities at the hearing on the motion (see 12.9712.122), some courts issue a tentative ruling based on the motion and response papers alone (see 12.12412.130), and in other courts the judge will come to the hearing with a ruling already in mind. The written memorandum should be the best argument for the motion that can be made; only in rare and unusual situations should a persuasive argument or point be held back for later use. 3. Selecting Declarant12.61a.Tactical ConsiderationsThe attorney must make tactical decisions in determining who should submit a declaration in support ofa motion or how many declarations to submit. If a factual point needs to be established, it must, of course, be established by someone with sufficient personal knowledge that the declaration statements are competent evidence. See 12.65. The declarant who is in a position to verify or present the fact willprobably be the most persuasive, and if several facts are to be presented, it is usually advantageous and more efficient to have those facts addressed by as few witnesses as possible.There are, however, significant differences between trial testimony and fact finding through declarations. Declarations may be carefully drafted by counsel, whereas trial testimony tends to be spontaneous in its wording and depends on the witnesss particular personality, linguistic skills, and state of mind. Furthermore, a declarant in a written declaration will not ordinarily be able to be cross-examined on what is included in the declaration prior to the hearing on the motion.12.75b.AffidavitAn affidavit is a written declaration under oath, made without notice to the adverse party. CCP 2003. It is customary for the affiant to sign an affidavit, but an affidavit with a proper jurat is sufficient without the affiants signature unless a particular statute or rule requires a signed affidavit. City of Petaluma v White (1907) 152 C 190, 195; Dodge v Free(1973) 32 CA3d 436, 443.The jurat of an affidavit is a certificate stating when, where, and before whom the affidavit was sworn or affirmed. See CCP 20932094. A statement without a jurat is not sufficient to serve as an affidavit. People v United Bonding Ins. Co. (1969) 272 CA2d 441, 443. The jurat may take different forms in other states or if made by an officer other than a notary public. Code of Civil Procedure 20122015 specify the persons and officers in California (any officer authorized to administer oaths) and elsewhere who may certify affidavits.A notarys seal stamped near his or her signature should indicate the county in which the notarys oath of office is filed, the county in which the notarys bond is filed, and the date on which the notarys commission expires. See Govt C 8207. However, an otherwise sufficient affidavit may be valid without the seal. See Reclamation Dist. v Snowball (1911) 160 C 695.12.76C.Pleadings and Papers on FilePleadings and papers on file in the action are before the judge (at least if referred to in the notice of motion) and may be referred to in the memorandum and declarations. Even though the clerks file of the case will be given to the judge hearing the motion, counsel should attach a copy of the pertinent papers to the motion papers for the convenience of the judge. Any paper previously filed must be referred to by title and date of execution. See Cal Rules of Ct 3.1110(d).That a matter is stated in a pleading or paper in the court file does not, by itself, necessarily satisfy applicable evidentiary requirements. For instance, if the intent is to prove the truth of a fact included in the allegations of a pleading, the pleading must have been verified and the allegations must be in the form of evidentiary facts rather than ultimate facts or conclusions. See Continental Baking Co. v Katz(1968) 68 C2d 512, 532.12.77D.Documentary Evidence in Support of MotionContracts, letters, business records, and other documents can be used to support a motion. Counsel should either Obtain the agreement of adverse counsel that the document (or a copy) may be used; or Include in supporting declarations authenticating statements that permit the documents admission in evidence over objections to authentication (see Evid C 1400), secondary evidence(see Evid C 1521), and hearsay (see Evid C 1200). See Dugar v Happy Tiger Records, Inc. (1974) 41 CA3d 811, 815. The declaration that authenticates a document may also incorporate it by reference, for example:On _ _[date]_ _, I entered into a written agreement with _ _[name]_ _. A true and correct copy of that agreement, marked Exhibit A, is attached to this declaration and incorporated by reference.If a document is offered to prove the truth of matters stated in it, the document is hearsay evidence (see Evid C 1200) and the declaration that accompanies it should contain statements that establish its admissibility under one of the exceptions to the hearsay rule (see Evid C 12201350). A document offered only to show its existence and terms is not subject to a hearsay objection.Some motions must be accompanied by particular filings, as specified by statute or the California Rulesof Court. For example, certain discovery motions must be accompanied by a separate paper listing the discovery requests, responses, and reasons for compelling further response. Other documents relied on must be summarized. Cal Rules of Ct 3.1020. 12.78E.Attached ExhibitsExhibits must be separated by a hard 8 by 11 inch sheet with tabs bearing the exhibit designation that extend below the bottom of the page. Pages from a single deposition and any associated exhibits must be designated as a single exhibit. An index to the exhibits must be included. Cal Rules of Ct 3.1110(f).Exhibits may be fastened to pages of the specified size and, when prepared by a machine copying process, must be equal to typewritten material in legibility and permanency of image. Cal Rules of Ct 2.114.All references to exhibits or declarations in supporting or opposing papers must reference the number or letter of the exhibit, and, if appropriate, the paragraph or line number. Cal Rules of Ct 3.1113(k). 12.791.Materials Lodged With ClerkMaterials lodged with the clerk should be accompanied by a return envelope (addressed and stamped) so that the material can be mailed back after the motion is decided. Cal Rules of Ct 3.1302(b). Some local rules provide for the use of attorney pick-up services for lodged materials as an alternative to providing a return envelope. See, e.g., Los Angeles Ct R 3.4(b).12.802.Use of CopiesIf an original document is required, copies of the documents may be used and identified in declarations,and the originals brought to court at the time of the hearing.If the original is needed and if the document is in the hands of an adverse party, a notice or subpoena directing its production at the hearing can be served with the motion papers. CCP 1987(b)(c).The secondary evidence rule provides that the content of a writing may be proved by otherwise admissible secondary evidence unless: A genuine dispute exists regarding material terms of the writing and justice requires exclusion; or Admission would be unfair. NOTE:Evid C 1521. See also Evid C 12701272. The secondary evidence rule applies to evidence offered in motion proceedings.Counsel should also remember that if the existence of the document, rather than the truth of its contents, is what is being proven, there is not a hearsay problem as to the contents. See, e.g., Evid C 1200. 12.81F.Requests for Judicial NoticeA moving party may ask that judicial notice be taken of facts that support a motion. See Parker v Twentieth Century-Fox Film Corp. (1970) 3 C3d 176, 181 (motion for summary judgment). Judicial notice of the matters specified in Evid C 451 is mandatory; although judicial notice of the matters listed in Evid C 452 is designated permissive, Evid C 453 states that the court shall take judicial notice of matters listed in 452 if a party requests it. A request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with Cal Rules of Ct 3.1306(c) and Evid C 453. See Cal Rules of Ct 3.1113(l). Local court rules may also prescribe procedures for requesting judicial notice. See, e.g., Los Angeles Ct R 3.8. On judicial notice generally, see California Trial Practice: Civil Procedure During Trial, chap 14 (3d ed Cal CEB).PRACTICE TIP:It is good practice to submit a request for judicial notice under Evid C 453 as to both the mandatory matters listed in Evid C 451 and the permissive matters listed in Evid C 452.Copies of the records or documents to be noticed must be provided to the court and to each party and should be attached to the request. Cal Rules of Ct 3.1306(c). If the material is part of the court file, the moving party must specify in writing the part of the court file of which notice is requested and arrange to have the file in the courtroom at the time of the hearing. Cal Rules of Ct 3.1306(c).NOTE:For some motions, e.g., a motion to strike, the request for judicial notice must be raised in the notice of motion or in the supporting memorandum. See CCP 437(b). V. SERVICE AND FILING12.82A.Proof of ServiceThe last paper in the group of papers served and filed to initiate a motion is normally a proof of service form. Motion papers are often served by mail (CCP 1012, 1013(a); see 12.84), and a proof of service by mail form can be completed (but not signed) before the papers are mailed and filed (CCP 1013a; see 18.4218.43 (discussion), 18.4518.49 (forms)). A conformed copy of the proof of service form is attached to each set of copies of the motion papers served.On service and filing of the papers generally, see chap 18.12.831.Whom to ServeAll parties to the action should be served with the motion papers. See CCP 10101020. The attorney for the plaintiff named first in the complaint must maintain and make available a list of all parties and the addresses at which they may be served. Cal Rules of Ct 3.254.12.842.Service by MailService of papers by mail may be made where there is regular mail service available. CCP 1012. Service by mail can be made by a person who is (CCP 1013a(3)) A resident of, or employed in, the county where the mailing occurs; Over the age of 18 and not a party to the lawsuit; and Readily familiar with the collection and processing of correspondence for mailing. Papers are served by that person placing them in a sealed, addressed, and stamped envelope, and depositing it with the United States Postal Service or by placing that sealed envelope for collection and mailing in accordance with ordinary business practices. CCP 1013a(3). On service by mail and express mail, see 18.818.12.As a matter of courtesy, mailing should be made in a timely fashion and delivered without undue delay.Moreover, service is presumed invalid if the postal cancellation date or postage meter date is more than1 day after the date of the deposit for mailing stated on the proof of service. CCP 1013a(3).Service is complete at the time of the deposit of the papers (CCP 1013(a)), but any prescribed time that depends upon the date of such service (e.g., a notice period) is extended (CCP 1005(b)) 5 calendar days for service by mail if the place of address and place of mailing is in California; 10 calendar days if either the place of mailing or place of address is outside California but within the United States; and 20 calendar days if either the place of mailing or the place of address is outside the United States. The declarant may sign the proof of service by mail only after the envelopes have been sealed and are on their way. See CCP 1013a(3). Thus, a copy of the proof of service actually served on other parties should not include the signature of th