33-372 Motions & Orders (original)

Volume 33: Motions After Trial thru Negotiable Instruments-Chs. 371-385

Chapter 372 MOTIONS AND ORDERS

Part I SCOPE
Ї 372.01 Scope of Chapter
This chapter discusses original motions and orders, as opposed to renewed motions and motions to reconsider, which are discussed in Ch. 374, Motions to Reconsider and Renewed Motions.

This chapter includes forms of:

З Notice of motion [see Ї 372.60].

З Supporting declaration [see Ї 372.61].

З Written statement of oral evidence sought to be introduced at the hearing [see Ї 372.62].

З Separate notice of intent to appear by telephone at a hearing on a motion [see Ї 372.63].

З Orders on a motion [see ЇЇ 372.64, 372.65].

З Notice of entry of order [see Ї 372.66] and notice of the court's decision [see Ї 372.67].

З Ex parte motion [see Ї 372.68].

З Orders on an ex parte motion [see ЇЇ 372.69, 372.70].

The chapter also includes a skeletal form of order to show cause [see Ї 372.71], and forms of written motion [see Ї 372.72] and notice of hearing on written motion [see Ї 372.73].
Ї 372.02 Cross References
For discussion and a skeletal form of memorandum of points and authorities, see Ch. 417, Points and Authorities.

Motions are far too numerous to list or classify with respect to the relief sought, and many have their own procedures prescribed by statutes which must be complied with. Consequently, for procedures governing specific motions and for forms for use with respect to those motions, counsel should consult specific titles in this publication. For example, for procedures and forms for use on a motion for summary judgment, a motion to dismiss an action, or a motion for new trial, see Ch. 537, Summary Judgment, Ch. 212, Dismissal, and Ch. 371, Motions After Trial, respectively. For forms for use on motions on appeal, see Ch. 45, Appeal: Motion Procedure.
ЇЇ 372.03-372.09 [Reserved]

Part II LEGAL BACKGROUND
Ї 372.10 Governing Law
Motions and orders are governed generally by Code Civ. Proc. ЇЇ 1003-1008[Deering's], 1064[Deering's] , notices of motion by Code Civ. Proc. ЇЇ 1005[Deering's], 1010[Deering's] , and service of notices and papers by Code Civ. Proc. ЇЇ 1010-1020[Deering's] . The filing fee required to be paid and exceptions to the requirement are covered by Gov. Code Ї 26830[Deering's] .

A comprehensive set of rules governing civil law and motion proceedings in superior court is set forth as Cal. Rules of Ct., Rule 301[Deering's] et seq. ``Law and motion'' is defined in Cal. Rules of Ct., Rules 303(a)[Deering's] . The rules also apply to discovery proceedings in family law and in probate [ Cal. Rules of Ct., Rule 301[Deering's] ]. In addition, unless the context or subject matter otherwise requires, the rules apply to demurrers [ Cal. Rules of Ct., Rule 303(c)[Deering's] ].

Appearance at hearings on motions is governed by Cal. Rules of Ct., Rule 298[Deering's] and by Cal. Rules of Ct., Appen., Div. I, Ї 21 .

In addition to the statutes and California Rules of Court, local court rules often impose specific and precise requirements on motion practice. Some of these rules are referred to in this chapter. However, as of July 1, 2000, Cal. Rules of Ct., Rule 981.1[Deering's] , 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 Judicial Council rule [ Cal. Rules of Ct., Rule 981.1(a)[Deering's] ]. There are some exceptions, most significantly for local rules enacted under the Trial Court Delay Reduction Act [ Cal. Rules of Ct., Rule 981.1(b)[Deering's], (c) ].

For discussion of motions in the Supreme Court and courts of appeal, see Ch. 45, Appeal: Motion Procedure. For discussion of motions in the superior court appellate divisions, see Ch. 345A, Limited Civil Cases.
Ї 372.11 Applicability of Civil Law and Motion Rules
For the purposes of Cal. Rules of Ct., Rule 301[Deering's] et seq. , ``law and motion'' is defined as including any of the following proceedings [ Cal. Rules of Ct., Rule 303(a)[Deering's] ]:

(1) On application before trial for an order, except for causes arising under the Welfare and Institutions Code, Probate Code, Family Code, or Code of Civil Procedure Ї 527.6[Deering's] (injunctions relating to harassment), Code of Civil Procedure Ї 527.7[Deering's] (injunctions relating to gang activity), or Code of Civil Procedure Ї 527.8[Deering's] (injunctions relating to threats of violence against an employee).

(2) On application for an order regarding the enforcement of judgment, attachment of property, appointment of a receiver, obtaining or setting aside a judgment by default, writs of review, mandate, and prohibition, a petition to compel arbitration, and enforcement of an award by arbitration.
Ї 372.12 ``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. Ї 1003[Deering's] ]. 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. Ї 1064[Deering's] ].

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 2(b)(1)[Deering's] ].

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 ].
Ї 372.13 Nature of Motion; When Motions May Be Made
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 [see Code Civ. Proc. Ї 1049[Deering's] , below, defining pendency of action]. Thus, motions may be made:

З Before trial, such as motions for summary judgment pursuant to Code Civ. Proc. Ї 437c[Deering's] .

З During trial, such as motions for nonsuit pursuant to Code Civ. Proc. Ї 581c[Deering's] .

З After trial, such as nonstatutory motions for directed verdict or motions for judgment notwithstanding the verdict pursuant to Code Civ. Proc. Ї 629[Deering's] .

З After judgment, such as motions to set aside or vacate judgment pursuant to Code Civ. Proc. ЇЇ 473(b)[Deering's], (d)[Deering's], 473.5[Deering's], and 663[Deering's] .

З During an appeal, such as a motion to strike a defective brief pursuant to Cal. Rules of Ct., Rule 18[Deering's] .

Moreover, there are no general rules governing the time for making motions, although a number of statutes relating to specific motions impose time limitations on when the motion can be made [see, e.g., Code Civ. Proc. Ї 435[Deering's] (motion to strike all or part of pleading)]. Except as limited by statute, a motion may normally be made at any time when the relief sought would be appropriate, provided of course, that the action or proceeding is still pending. 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. Ї 1049[Deering's] ].
Ї 372.14 Who May Make Motion
Normally, a motion may be made only by a person who is a party to the pending action or proceeding [ Difani v. Riverside County Oil Co. (1927) 201 Cal. 210, 214, 256 P. 210 ; Chase v. Superior Court (1962) 210 Cal. App. 2d 872, 876, 27 Cal. Rptr. 883 ; Marshank v. Superior Court (1960) 180 Cal. App. 2d 602, 605, 4 Cal. Rptr. 593 ; see also Roski v. Superior Court (1971) 17 Cal. App. 3d 841, 845-846, 95 Cal. Rptr. 312 (motion by nonparty to action under Code Civ. Proc. Ї 473[Deering's] to vacate plaintiff's voluntary dismissal of action and for leave to intervene held unauthorized and granting of motion improper)]. An exception exists in the case of a void judgment or order. A person who is not a party to the action or proceeding may move to vacate the void judgment or order if he or she has a right or interest which would be affected by its enforcement [ People v. Silva (1981) 114 Cal. App. 3d 538, 547, 170 Cal. Rptr. 713 ]. Also, an attorney to whom an award of fees has properly been ordered paid, although not a party to the action or proceeding, may move the court to enforce the award [ Sorrell v. Superior Court (1967) 248 Cal. App. 2d 157, 159, 56 Cal. Rptr. 222 ].
Ї 372.15 Court in Which Motion Is to Be Made
Code Civ. Proc. Ї 1004[Deering's] provides that except as provided in Code Civ. Proc. Ї 166[Deering's] (relating to power of trial court judges to act in chambers and powers of judges as opposed to powers of court), motions must be made in the court in which the action is pending. Notwithstanding this provision, other statutes may authorize the making of a motion in a court other than the one in which the action is pending [see, e.g., Code Civ. Proc. Ї 708.160[Deering's] , relating to examination of third persons with information about a judgment debtor's assets under Code Civ. Proc. Ї 708.120[Deering's] et seq. , discussed in Ch. 254, Executions and Enforcement of Judgments].
Ї 372.16 Kinds of Motions and Terminology
All motions are either oral or written and are made in one of the following manners:

З By making the motion orally in open court during a hearing or trial or in the judge's chambers in the presence of adverse counsel. Examples of oral motions during trial are motions to strike testimony, motions for nonsuit [ Code Civ. Proc. Ї 581c[Deering's] ] or judgment [ Code Civ. Proc. Ї 631.8[Deering's] ], motions for directed verdict, and motions for mistrial;

З By presenting an ex parte motion, or application, and order to a judge or commissioner in chambers, followed, if the judge or commissioner signs the order, by the filing and service of the motion and order [see discussion under Ї 372.19; for a form, see Ї 372.68];

З By filing a written motion, application, or petition, followed by the serving and filing of a notice of hearing. Examples of written motions are the application for a right to attach order and writ of attachment [ Code Civ. Proc. Ї 484.010[Deering's] ; see also Ch. 62, Attachment ] and petitions for orders in probate proceedings [ Prob. Code Ї 1200[Deering's] et seq. ]; or

З By serving and filing a notice of motion with its supporting papers followed by a hearing on the motion and the ruling of the judge granting or denying it [see discussion under Ї 372.21, for forms, see ЇЇ 372.60-372.66].

In describing a written motion, counsel should use the terminology (``motion'' or ``application'' or ``petition'') of the statute governing the particular motion unless a written form employing other terminology is provided by the court in which the cause is pending. Use of the word ``petition'' in a statute as a substitute for the term ``written motion'' [see, e.g., Prob. Code Ї 1201[Deering's] ] should not, however, be confused with the word ``petition'' used to describe the pleading that initiates a special proceeding of a civil or criminal nature. For example, all proceedings for a prerogative writ are initiated by the filing of a petition [see Code Civ. Proc. ЇЇ 1069[Deering's] (certiorari), 1086[Deering's] (mandate), 1103[Deering's] (prohibition); Penal Code Ї 1474[Deering's] (habeas corpus)].

Which of the four procedures listed above is to be followed in a given case will depend on when the motion is made and the particular order sought. For example, motions before trial are ordinarily made on notice to the adverse party or ex parte, or by written motion followed by the service and filing of a notice of hearing. Motions made during trial are usually made orally. Motions after trial are typically made on notice to the adverse party.
Ї 372.17 Orders to Show Cause
An order to show cause is made by the court or judge on ex parte application [ Kenney v. Kelleher (1883) 63 Cal. 442, 444 ; for a form, see Ї 372.71]. It is in the nature of a citation to a party to appear at a stated time and place to show cause why the relief sought should not be granted [ Green v. Gordon (1952) 39 Cal. 2d 230, 232, 246 P.2d 38 ]. It substitutes for a notice of motion [ Donald J. v. Evna M. (1978) 81 Cal. App. 3d 929, 933, 147 Cal. Rptr. 15 ; Marshank v. Superior Court (1960) 180 Cal. App. 2d 602, 605, 4 Cal. Rptr. 593 ]; that is, it operates both as a notice of motion for an order and as a citation to a party to appear at a stated time and place to show cause why the motion should not be granted [ Difani v. Riverside County Oil Co. (1927) 201 Cal. 210, 213-214, 256 P. 210 ; see also Sarracino v. Superior Court (1974) 13 Cal. 3d 1, 8 n.6, 118 Cal. Rptr. 21, 529 P.2d 53 ; Reifler v. Superior Court (1974) 39 Cal. App. 3d 479, 483, 114 Cal. Rptr. 356 ].

Orders to show cause are commonly used in family law proceedings to secure pendente lite or other relief [see Cal. Judicial Council Form 1285 ; see also Ch. 220, Dissolution of Marriage and Related Proceedings, Pt. I, ``Procedure''], in actions and proceedings to secure issuance of a preliminary injunction when a temporary restraining order is granted without notice [ Code Civ. Proc. Ї 527(a)[Deering's] ; Fam. Code Ї 6300[Deering's] et seq. ; see also Cal. Judicial Council Form 1296.10 ; Ch. 303, Injunctions; Ch. 293, Harassment and Domestic Violence], and in indirect contempt proceedings to secure the presence in court of alleged contemner [see Code Civ. Proc. Ї 1212[Deering's] ; see also Ch. 135, Contempt; for form of order to show cause and declaration for contempt in family law proceeding, see Cal. Judicial Council Form 1285.60 and Ch. 258, Family Law Enforcement: General Enforcement Principles and Remedies, Ї 258.130 ].

The order to show cause proceeding is also used to secure an order against a party who has not yet appeared in the action or proceeding [see Code Civ. Proc. ЇЇ 1010[Deering's], 1014[Deering's] ], although jurisdiction over the party has already been obtained by service of summons or will be obtained by such service concurrently with the service of the order to show cause.
Ї 372.18 Filing Fee
Except for motions for summary judgment or adjudication [see Gov. Code Ї 26830(b)[Deering's] ], the fee for filing any notice of motion or any other paper requiring a hearing subsequent to the first paper is $33 [ Gov. Code Ї 26830(a)[Deering's] ]. However, no filing fee may be charged for an amended notice of motion [ Gov. Code Ї 26830(a)(1)[Deering's] ].

Other papers for which no filing fee may be charged are the following:

З A civil case management statement [ Gov. Code Ї 26830(a)(2)[Deering's] ].

З A hearing on a petition for emancipation of a minor [ Gov. Code Ї 26830(a)(3)[Deering's] ].

З Default hearings [ Gov. Code Ї 26830(a)(4)[Deering's] ].

З A show-cause hearing on a petition for an injunction prohibiting harassment [ Gov. Code Ї 26830(a)(5)[Deering's] ].

З A show-cause hearing on an application for an order prohibiting domestic violence [ Gov. Code Ї 26830(a)(6)[Deering's] ].

З A show-cause hearing on writs of review, mandate, or prohibition [ Gov. Code Ї 26830(a)(7)[Deering's] ].

З A show-cause hearing on a petition for a change of name [ Gov. Code Ї 26830(a)(8)[Deering's] ].

З A hearing to compromise a claim of a minor or an insane or incompetent person [ Gov. Code Ї 26830(a)(9)[Deering's] ].
Ї 372.19 Procedure on Ex Parte Motions
[1]--Who May Grant
Ex parte motions may be granted by a judge and may be granted at chambers [ Code Civ. Proc. Ї 166(a)(1)[Deering's] ; see also Code Civ. Proc. Ї 1003[Deering's] ]. They may also be granted by court commissioners [ Code Civ. Proc. Ї 259(a)[Deering's] ; Gov. Code Ї 72190[Deering's] ].
[2]--Form and Contents of Application
Ex parte applications must be in writing [ Cal. Rules of Ct., Rule 379(f)[Deering's] ]. The application must include all the following [ Cal. Rules of Ct., Rule 379(f)[Deering's] ]:

З An application containing the case caption and stating the relief requested

З A declaration in support of the application.

З A competent declaration based on personal knowledge regarding notice of the application as required by Cal. Rules of Ct., Rule 379(e)[Deering's] [see [4], below].

З Points and authorities.

З A proposed order.

An ex parte application must state the name, address, and telephone number of any attorney known to the applicant to be the attorney for any party or, if no such attorney is known, the name, address, and telephone number of such party if known to the applicant [ Cal. Rules of Ct., Rule 379(d)(1)[Deering's] ].

If an ex parte application for an order has been made to the court and has been refused in whole or in part, any subsequent application of the same character or for the same relief, although made upon an alleged different state of facts, must include a full disclosure of any previous applications and the court's actions [ Cal. Rules of Ct., Rule 379(d)(2)[Deering's] ].

An ex parte application for an order must be accompanied by an affidavit or declaration showing either [ Cal. Rules of Ct., Rule 379(a)[Deering's] ]:

З That, within the applicable time period under Cal. Rules of Ct., Rule 379(b)[Deering's] , the applicant informed the opposing party when and where the application would be made; or

З That the applicant in good faith attempted to inform the opposing party but was unable to do so, specifying the efforts made to inform the opposing party; or

З That for reasons specified, the applicant should not be required to inform the opposing party.

For a form of application that includes the Rule 379(e) declaration, see Ї 372.68]. For forms of proposed orders, see ЇЇ 372.69 and 372.70. For forms of declarations to support the substantive basis of the application, see specific subject matter titles throughout this publication. For forms of points and authorities, see the chapter in CALIFORNIA POINTS AND AUTHORITIES that relates to the particular subject matter of the application.
[3]--Showing Basis for Proceeding Ex Parte
An applicant for an ex parte order must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte [ Cal. Rules of Ct., Rule 379(g)[Deering's] ].
[4]--Presenting Application
An ex parte motion [for a form, see Ї 372.68] is made, in the case of a court with a single judge, to the judge of the court, and in the case of a multiple judge court, to the judge or commissioner to whom the case has been assigned [see, e.g., Cal. Rules of Ct., Rule 235(a)[Deering's] (ex parte application for order extending time)] or, if the case has not yet been assigned to a judge or department, to the presiding judge of the court or to the law and motion judge, depending on local court requirements. Precise procedure varies widely among the courts and, if in doubt as to the requirements of the court in which the case is pending, counsel should check the local court rules for that court.

The court will not consider an ex parte application unless the applicant personally appears, except in the case of the following matters, for which an appearance is not required [ Cal. Rules of Ct., Rule 379(i)[Deering's] ]:

З Applications to file a memorandum of points and authorities in excess of the applicable page limit.

З Setting of hearing dates on alternative writs and orders to show cause.

З Stipulations by the parties or other orders of the court.

The clerk cannot reject an ex parte application for filing and must promptly present the application to the appropriate judicial officer for consideration, notwithstanding the failure of the applicant to comply with the notification requirements of Cal. Rules of Ct., Rule 379(b)[Deering's] [ Cal. Rules of Ct., Rule 379(c)[Deering's] ].
[5]--Notice to Opposing Party
[a]--Notice Requirement
A party seeking an ex parte order must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance, absent a showing of exceptional circumstances that justify a shorter time for notice; and a party seeking an ex parte order in a lawful detainer proceeding may provide shorter notice provided that the notice given is reasonable [ Cal. Rules of Ct., Rule 379(b)[Deering's] ]. The person giving notice must state with specificity the nature of the relief to be requested and the date, time, and place for the presentation of the application. The person giving notice must also attempt to determine whether the opposing party and/or counsel will appear to oppose the application [ Cal. Rules of Ct., Rule 379(e)(1)[Deering's] ].
[b]--Proof of Giving Notice
Every ex parte application must be accompanied by a declaration regarding notice that states either [ Cal. Rules of Ct., Rule 379(e)(2)[Deering's] ]:

З The notice given, including the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected; or

З Why notice should not be required.

If notice was provided later than 10:00 a.m. the court day before the ex parte appearance, the declaration regarding notice must explain either [ Cal. Rules of Ct., Rule 379(e)(3)[Deering's] ]:

З The exceptional circumstances that justify the shorter notice; or

З In unlawful detainer proceedings, why the notice given is reasonable.

For a form of application for an ex parte order that includes such a declaration, see Ї 372.68.
[c]--Service of Papers
Parties appearing at the ex parte hearing must serve the ex parte application or any written opposition on all other appearing parties at the first reasonable opportunity. Absent exceptional circumstances, no hearing may be conducted unless service has been made [ Cal. Rules of Ct., Rules 379(h)[Deering's] ].
[6]--Motion Granted
If the ex parte motion is granted, the judge or commissioner will sign the original of the order granting it. Counsel should then have the copies conformed by the courtroom clerk or by a deputy clerk in the court clerk's office and have the originals of the motion, if written, and the order filed if they have not been taken by the courtroom clerk for filing already.
[7]--Notice of Court's Decision or Order
When a motion is granted or denied, unless the court otherwise orders, notice of the court's decision or order must be given by the prevailing party to all other parties or their attorneys in the manner provided in Code Civ. Proc. ЇЇ 1010-1020[Deering's] (for further discussion, see Ї 372.24; Ch. 518, Service of Summons and Papers), unless notice is waived by all parties in open court and is entered in the minutes [ Code Civ. Proc. Ї 1019.5(a)[Deering's] ; for a form, see Ї 372.67].
[8]--Service of Motion and Order
Counsel should serve, or cause to be served, a conformed copy of the order, together with a copy of the written ex parte motion, if any, on opposing counsel or on the opposing party if not represented by counsel [see Code Civ. Proc. Ї 1015[Deering's] ]. In the case of an order shortening time for service of a notice of motion [ Code Civ. Proc. Ї 1005(b)[Deering's] , Cal. Rules of Ct., Rule 317(b)[Deering's] ; see Ch. 524, Shortening and Extension of Time], the court may require that the notice of motion, supporting papers, and order shortening time be served on opposing counsel personally [see Code Civ. Proc. ЇЇ 1011[Deering's], 1015[Deering's] ] within a stated period. Otherwise, if time is not a problem, a conformed copy of the order granting the ex parte motion, and a copy of the motion, if written, may be served by mail pursuant to Code Civ. Proc. ЇЇ 1012[Deering's], 1013[Deering's] . For further discussion, see Ї 372.24.
[9]--Proof of Service
Regardless of how service is effected, the better practice is to prepare and file a proof of service setting forth the exact titles of the papers served [see Code Civ. Proc. Ї 1013a[Deering's] ]. Although this practice is not required by statute, it may be required by local court rule.
Ї 372.20 Determining Whether Written Notice Is Required
The term ``noticed motion,'' as already indicated, is used to describe a motion made on written notice to the adverse party. The majority of motions made other than during trial are of this kind.

There is no express statutory provision generally requiring that notice of all motions be given. A number of statutes do require that a particular motion by a party be made on notice [see, e.g., Code Civ. Proc. Ї 437c(a)[Deering's] (motion for summary judgment), Code Civ. Proc. Ї 473(d)[Deering's] (motion to set aside void judgment or order), Code Civ. Proc. ЇЇ 583.250(a)(2)[Deering's], 583.360(a)[Deering's] (motion to dismiss action for failure to prosecute)]. In addition, Code Civ. Proc. Ї 1005(a)[Deering's] lists numerous motions for which notice must be given in accordance with Code Civ. Proc. Ї 1005(b)[Deering's] . However, other statutes are silent on this point [see, e.g., Code Civ. Proc. Ї 464[Deering's] (motion to file supplemental pleading), Code Civ. Proc. Ї 473(a)[Deering's] (motion to amend pleading), Code Civ. Proc. Ї 473(b)[Deering's] (motion for relief based on surprise, etc.)].

If the governing statute fails to indicate whether or not the particular motion is to be made on notice, it has been left to the courts to determine whether or not written notice to the adverse party is required [ Arata v. Tellurium G. & S. M. Co. (1884) 65 Cal. 340, 342, 4 P. 195 ]. Generally, it may be said that when the order granting the motion will affect the rights of the adverse party, the motion must be made on notice to such party [ McDonald v. Severy (1936) 6 Cal. 2d 629, 631, 59 P.2d 98 ; Bohn v. Bohn (1913) 164 Cal. 532, 536, 129 P. 981 ] to satisfy the procedural due process requirements of U.S. Const., amend. XIV , and of Cal. Const., art. I, Ї 7(a)[Deering's] .

Conversely stated, a motion may be made ex parte, that is without notice to the adverse party, if the order granting the motion will not affect the rights of the adverse party and there is no statutory requirement or court rule that the motion be made on notice.

Ex parte motions are permitted primarily in two situations. One is when the adverse party does not have a right to be heard in opposition, for example, when the court can act on its own motion. The other situation is when there is a pressing need for immediate relief and great or irreparable harm [see Cal. Rules of Ct., Rule 379[Deering's] ] could result from any delay, for example, if it is imperative that a temporary restraining order [see Code Civ. Proc. Ї 527(a)[Deering's] ] be granted or a receiver appointed [see Cal. Rules of Ct., Rule 349[Deering's] ].
Ї 372.21 Procedure on Noticed Motions
[1]--Waiver of Defective Notice
[a]--By Appearance Without Objection
Defects and irregularities in a notice of motion, and failure to give notice at all, are normally waived by the adverse party's appearance at the hearing of the motion and opposition to it on its merits [ Vlahovich v. Cruz (1989) 213 Cal. App. 3d 317, 320, 261 Cal. Rptr. 565 ; Tate v. Superior Court (1975) 45 Cal. App. 3d 925, 930, 119 Cal. Rptr. 835 ]. However, this rule does not apply where the appearance in opposition to the motion is for the limited purpose of objecting to a consideration of the motion by the court on the ground of insufficiency of the notice. Such an appearance does not constitute a waiver of proper notice [ Bohn v. Bohn (1913) 164 Cal. 532, 538-539, 129 P. 981 ].
[b]--Preserving Objection for Record
An attorney that claims that his or her client was not properly served with motion papers or that inadequate notice of hearing was received or both is faced with a dilemma. According to Carlton v. Quint (2000) 77 Cal. App. 4th 690, 697-698, 91 Cal. Rptr. 2d 844 , the appropriate procedure to pursue under these circumstances is as follows:

З If counsel is convinced his or her legal position is correct, counsel may appear at the hearing without filing a response to the motion and request a continuance for the purpose of preparing a proper response. If counsel makes a complete record relating to both the defective service or inadequate notice, or both, and the inability to prepare a proper response, and the court denies the continuance, the record will be well preserved for any future writ proceeding or appeal.

З If counsel is unwilling to take the chance that a continuance will be granted, counsel should file the best opposition possible under the circumstances. The opposition should include counsel's position on the defective service or inadequate notice issue, or both, as well as the merits. The opposition fully discuss counsel's position as to why a more complete opposition was not able to be filed (for example, because defective notice did not give counsel adequate time to prepare a response). Counsel should then appear at the hearing, object to the hearing taking place because the service was defective or inadequate notice of the hearing was received, or both. Again explain to the court the prejudice that has been suffered by reason of the defective service and/or inadequate notice, and request a continuance so that a proper response to the motion may be filed. Counsel should be prepared to argue the motion on the merits if the court denies a continuance. If, however, these steps are taken, the record will be well preserved for any future writ proceeding or appeal.
[2]--Written Notice Required; Length of Notice
[a]--Notice to Be in Writing
Notices must be in writing [ Code Civ. Proc. Ї 1010[Deering's] ].
[b]--When Notice Must Be Given Pursuant to Code Civ. Proc. Ї 1005
In the following instances, written notice must be given pursuant to Code Civ. Proc. Ї 1005(b)[Deering's] [ Code Civ. Proc. Ї 1005(a)[Deering's] ]:

(1) Notice of application and hearing for a writ of attachment under Code Civ. Proc. Ї 484.040[Deering's] .

(2) Notice of application and hearing for claim and delivery under Code Civ. Proc. Ї 512.030[Deering's] .

(3) Notice of hearing for claim of exemption under Code Civ. Proc. Ї 706.105[Deering's] .

(4) Motion to quash summons under Code Civ. Proc. Ї 418.10(b)[Deering's] .

(5) Motion for determination of a good faith settlement under Code Civ. Proc. Ї 877.6[Deering's] .

(6) Hearing for discovery of a peace or custodial officer's personnel records under Evid. Code Ї 1043[Deering's] .

(7) Notice of hearing of a third-party claim under Code Civ. Proc. Ї 720.320[Deering's] .

(8) Motion for an order to attend a deposition more than 150 miles from deponent's residence under Code Civ. Proc. Ї 2025(e)(3)[Deering's] .

(9) Notice of hearing of application for relief under Gov. Code Ї 946.6[Deering's] .

(10) Motion to set aside default or default judgment and for leave to defend actions pursuant to Code Civ. Proc. Ї 473.5[Deering's] .

(11) Motion to expunge notice of pendency of action pursuant to Code Civ. Proc. Ї 405.30[Deering's] .

(12) Motion to set aside default and for leave to amend [sic, defend] pursuant to Code Civ. Proc. Ї 585.5[Deering's] .

(13) Any other proceeding under the Code of Civil Procedure in which notice is required and no other time or method is prescribed by law or by court or judge.

The fact that an opposing party has actual knowledge of a pending court proceeding does not excuse the moving party from the requirement of giving the written notice required by statute [ County of Santa Clara v. Perry (1998) 18 Cal. 4th 435, 442, 75 Cal. Rptr. 2d 738, 956 P.2d 1191 ].

However, failure to give notice of a motion usually requiring advance notice may be excused if the motion is made orally in open court in the presence of counsel for the adverse party [see Thieme v. Commercial Lighting etc. Co. (1960) 177 Cal. App. 2d 575, 576, 2 Cal. Rptr. 382 ].
[c]--Length of Notice Under Code Civ. Proc. Ї 1005
[i]--Twenty One Calendar Days
Unless otherwise ordered or specifically provided by law, all moving and supporting papers must be served and filed at least 21 calendar days before the hearing [ Code Civ. Proc. Ї 1005(b)[Deering's] ; Cal. Rules of Ct., Rule 317(a)[Deering's] ]. The papers served must be a copy of the papers filed or to be filed with the court [ Code Civ. Proc. Ї 1005(b)[Deering's] ].
[ii]--Extension of Period if Served by Mail, Fax, or Overnight Delivery
The 21-day period may be extended depending on the method of service used [ Code Civ. Proc. Ї 1005(b)[Deering's] ].

If the notice is served by mail, the 21-day period is increased as follows[ Code Civ. Proc. Ї 1005(b)[Deering's] ]:

З By five calendar days if the place of mailing and place of address are in California;

З By 10 calendar days if either the place of mailing or place of address is outside California but within the United States;

З By 20 calendar days if either the place of mailing or place of address is outside the United States.

If the notice is served by express mail, or another method of overnight delivery, the 21-day period is increased by two calendar days [ Code Civ. Proc. Ї 1005(b)[Deering's] ].

If the notice is served by facsimile transmission, the 21-day period is increased by two calendar days [ Code Civ. Proc. Ї 1005(b)[Deering's] ].

The Code Civ. Proc. Ї 1013[Deering's] extensions of 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 governed by section 1005 [ Code Civ. Proc. Ї 1005(b)[Deering's] ].

If the notice is served by electronic service, the two court day extension provided for in Code Civ. Proc. Ї 1010.6(a)(6)[Deering's] may apply, because section 1005 does not exclude extension under that statute. For discussion of electronic service, see Ch. 518, Service of Summons and Papers, Ї 518.40 et seq.

For a discussion of the persons to be served, exceptions, and the manner of service, see Ї 372.24.
[d]--Length of Notice Under Other Provisions
Statutes governing a particular motion in various civil actions or special proceedings may vary the amount of time required. For example, Code Civ. Proc. Ї 1167.4(a)[Deering's] requires that a notice of motion under Code Civ. Proc. Ї 418.10(a)[Deering's] (motion to quash service of summons or stay or dismiss action for inconvenient forum or dismiss for delay in prosecution) designate as the time for making the motion in a special proceeding in unlawful detainer, forcible entry, or forcible detainer a date not less than three or more than seven days after the filing of the notice.
[e]--Maximum Lengths of Notice
Code Civ. Proc. Ї 1005(b)[Deering's] , as indicated, imposes a minimum, but not a maximum, limitation on the amount of notice to be given. Nevertheless, statutes governing particular motions may impose a maximum time limitation on the motion. For example, Code Civ. Proc. Ї 418.10(b)[Deering's] , relating to a motion to quash service of summons for lack of jurisdiction or to stay or dismiss an action for inconvenient form or dismiss for delay in prosecution, is required to designate as the time for making the motion a date not more than 30 days after the filing of the notice of motion.
[3]--Shortening Time
Notwithstanding the minimum time limitations, the court, on its own motion or on application for an order shortening time supported by a declaration showing good cause, may prescribe shorter times for the filing and services of papers than the times specified in Code Civ. Proc. Ї 1005[Deering's] [ Cal. Rules of Ct., Rule 317(b)[Deering's] ; see Code Civ.Proc. Ї 1005(b)[Deering's] ; for discussion and form, see Ch. 524, Shortening and Extension of Time].
[4]--Proof of Service
Proof of service of the moving papers must be filed no later than five calendar days before the time appointed for the hearing [ Cal. Rules of Ct., Rule 317(c)[Deering's] ].

The court may consider a motion, petition, or opposition to the motion or petition that is filed without a proof of service as incomplete, and therefore may reject it for filing or refuse it consideration [see Orange Co. Super. Ct. Rules, Rule 512 ].
[5]--Supporting Papers
[a]--Required to Accompany Notice
A copy of any paper on which the motion is based, which has not previously been served on the party to be notified and was not filed by that party, must accompany the notice of motion [ Code Civ. Proc. Ї 1010[Deering's] ; see also Code Civ. Proc. Ї 1005(b)[Deering's] and Ї 372.60[4]]. Such papers will include any supporting affidavits or declarations, requests for judicial notice, any memorandum of points and authorities, and exhibits, appendices, or pleadings [see Cal. Rules of Ct., Rules 312(a)[Deering's], 313[Deering's] ].
[b]--Affidavits and Declarations
Unless the motion is one that may not be supported by extrinsic evidence other than that of which the court may take judicial notice under Evid. Code Ї 450[Deering's] et seq. (see, e.g., a motion to strike under Code Civ. Proc. Ї 435[Deering's] et seq. ), a notice of motion is normally accompanied by one or more affidavits or declarations under penalty of perjury setting forth the evidentiary facts required to establish the grounds of the motion [see discussion under [17], below; see also Ї 372.61[2] et seq.].

An affidavit is (1) a written declaration under oath made without notice to the adverse party [ Code Civ. Proc. Ї 2003[Deering's] ]; (2) one of the three modes of taking the testimony of a witness [see Code Civ. Proc. Ї 2002(1)[Deering's] ]; and (3) expressly authorized for use ``on a motion'' [ Code of Civ. Proc. Ї 2009[Deering's] ; see Ch. 15, Affidavits, Certificates, and Declarations].

A declaration under penalty of perjury may be used in lieu of an affidavit [ Code Civ. Proc. Ї 2015.5[Deering's] ; see Ch. 15, Affidavits, Certificates, and Declarations]. To a large extent, declarations under penalty of perjury have replaced affidavits as the mode of presenting the evidence of a witness on a motion. For a skeletal form of declaration under penalty of perjury, see Ї 372.61.

Other evidentiary documents on which the motion is based, such as contracts or deeds of trust, may be attached as exhibits to the declarations that authenticate them.
[c]--Memorandum of Points and Authorities
A party filing a notice of motion, except for a new trial, must generally serve and file with it a memorandum of points and authorities to be relied on [see Cal. Rules of Ct., Rules 312(c)[Deering's], 313[Deering's] ]. The absence of the memorandum may be construed by the court as an admission that the motion is not meritorious and cause for its denial [ Cal. Rules of Ct., Rule 313(a)[Deering's] ; for discussion of the applicability of the law and motion rules, see Ї 372.11].

Certain motions, applications and petitions do not require a memorandum of points and authorities when the motion, application, or petition is filed on a Judicial Council Form [ Cal. Rules of Ct., Rule 314(a)[Deering's] ]. These are:

З Application for appointment of a guardian ad litem in a civil case [ Cal. Rules of Ct., Rule 314(a)(1)[Deering's] ].

З Application for an order extending time to serve pleading [ Cal. Rules of Ct., Rule 314(a)(2)[Deering's] ].

З Motion to be relieved as counsel [ Cal. Rules of Ct., Rule 314(a)(3)[Deering's] ].

З Motion filed in small claims case [ Cal. Rules of Ct., Rule 314(a)(4)[Deering's]) ].

З Petition for change of name or gender [ Cal. Rules of Ct., Rule 314(a)(5)[Deering's] ].

З Petition for declaration of emancipation of minor [ Cal. Rules of Ct., Rule 314(a)(6)[Deering's] ].

З Petition for injunction prohibiting harassment [ Cal. Rules of Ct., Rule 314(a)(7)[Deering's] ].

З Petition for protective order to prevent elder or dependent adult abuse [ Cal. Rules of Ct., Rule 314(a)(8)[Deering's] ].

З Petition of employer for injunction prohibiting workplace violence [ Cal. Rules of Ct., Rule 314(a)(9)[Deering's] ].

З Petition for order prohibiting abuse [ Cal. Rules of Ct., Rule 314(a)(10)[Deering's] ].

З Petition to approve compromise of claim of a minor or an incompetent person [ Cal. Rules of Ct., Rule 314(a)(11)[Deering's] ].

З Petition for withdrawal of funds from blocked account[ Cal. Rules of Ct., Rule 314(a)(12)[Deering's] ].

While not required, a memorandum of points and authorities may be submitted if it would further the interests of justice. The court may also order the submission of a memorandum in support of the foregoing motions, applications or petitions. Any memorandum submitted must comply with Cal. Rules of Ct., Rule 313[Deering's] [ Cal. Rules of Ct., Rule 314(b)[Deering's] ].

The filing of points and authorities supporting and opposing a notice of intention to move for a new trial is covered by Cal. Rules of Ct., Rule 236.5[Deering's] .

For discussion and a skeletal form of memorandum of points and authorities, see Ch. 417, Points and Authorities. For forms of memoranda in opposition to motions, see specific titles in CALIFORNIA POINTS AND AUTHORITIES (Matthew Bender).
[d]--Other Documents
A party may wish to submit additional documents, such as the following:

З A request to introduce oral evidence at hearing [ Cal. Rules of Ct., Rule 323(a)[Deering's] ; see [17][b], below]; or

З Evidentiary objections to evidence submitted in the opponent's papers [see generally CALIFORNIA TRIAL GUIDE (Matthew Bender)].
[6]--Where Papers Are to Be Filed
All papers relating to a law and motion proceeding, unless otherwise provided by local court rule, must be filed in the clerk's office [ Cal. Rules of Ct., Rule 319(a)[Deering's] ].
[7]--Timely or Late Filed Papers
A paper submitted before the close of the clerk's office to the public on the day the paper is due is deemed timely filed [ Cal. Rules of Ct., Rule 317(e) ]. Nonetheless, no paper shall be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order shall so indicate [ Cal. Rules of Ct., Rule 317(d)[Deering's] ].
[8]--Motion as Deemed Made on Service and Filing
Historically, motions other than written motions had to be made viva voce, that is, orally, to a judge or court [see Williams v. Hawley (1904) 144 Cal. 97, 99-100, 77 P. 762 ; People v. Ah Sam (1871) 41 Cal. 645, 650 ]. Consequently, the notice of motion would state that on a specified date and time, at a specified place, the moving party ``will move'' the court for an order, that the motion ``will be made'' on specified grounds, and that the motion ``will be based'' on specified matters. At the hearing, the moving party would then orally make the motion.

Because hearings were frequently postponed, it became not uncommon for the moving party, by the time of the postponed hearing, to have lost the right to the order sought, since the time within which the motion had to be made had expired. To correct this problem, the Legislature, in 1953, enacted Code Civ. Proc. Ї 1005.5[Deering's] . This section provides that a motion on all the grounds stated in the written notice of motion is deemed to have been made and to be pending before the court, for all purposes, on the due service and filing of the notice of motion [see also Sweat v. Hollister (1995) 37 Cal. App. 4th 603, 613, 43 Cal. Rptr. 2d 399 ; Estate of Parks (1962) 206 Cal. App. 2d 623, 629, 24 Cal. Rptr. 250 ; Gray v. Laufenberger (1961) 195 Cal. App. 2d Supp. 875, 880, 15 Cal. Rptr. 813 ]. To assure that the result of this provision would not result in depriving the parties of a hearing, the statute further states that a party will not be deprived of a hearing of the motion to which he or she is otherwise entitled [see Code Civ. Proc. Ї 1005.5[Deering's] ]. Section 1005.5 excludes motions for new trial, the procedure for which is provided for elsewhere [see Code Civ. Proc. ЇЇ 659[Deering's], 1005.5[Deering's] ; for discussion, see Ch. 371, Motions After Trial].

The enactment of Code Civ. Proc. Ї 1005.5[Deering's] , of course, did not convert an oral motion to a written motion or affect the contents of the notice of motion; it merely stopped the running of any time period on the motion and, incidentally, dispensed with the necessity of making the motion orally at the hearing by providing that the motion is deemed to have been made on the due service and filing of the notice of motion.
[9]--Opposition to Motion
Although not expressly authorized by statute or by the California Rules of Court, practice permits counsel for the adverse party to oppose the motion by filing a memorandum of points and authorities in opposition to it [for memoranda of points and authorities in opposition to motions, see specific titles in CALIFORNIA POINTS AND AUTHORITIES (Matthew Bender)]. More importantly, however, failure to oppose a motion results in a waiver on appeal of any objection to the resulting order [see Bell v. American Title Ins. Co. (1991) 226 Cal. App. 3d 1589, 1602, 277 Cal. Rptr. 583 (party neither filed opposition nor objected at hearing)].

Moreover, unless prohibited with respect to a specific motion, for example, a nonstatutory motion for judgment on the pleadings or a statutory motion to strike [see Code Civ. Proc. ЇЇ 435-437[Deering's] ], counsel may also file counter affidavits and counter declarations [see Code Civ. Proc. ЇЇ 2002(1)[Deering's], 2003[Deering's], 2009[Deering's], 2015.5[Deering's] ] in opposition to the motion.

All papers opposing a noticed motion must be filed with the court and a copy served on each party at least 10 calendar days before the hearing [ Code Civ. Proc. Ї 1005(b)[Deering's] ; Cal. Rules of Ct., Rule 317(a)[Deering's] ]. Although Code Civ. Proc. Ї 1005 (b)[Deering's], (c)[Deering's] expressly provides that Code Civ. Proc. Ї 1013[Deering's] does not apply to papers governed by section 1005, it does not exclude application of Code Civ. Proc. Ї 1010.6(a)(6)[Deering's] , which would give the opposing party a two court day extension if the moving papers were served electronically under Code Civ. Proc. Ї 1010.6[Deering's] .
[10]--Reply Papers
All reply papers must be filed with the court and a copy served at least five calendar days before the hearing [ Code Civ. Proc. Ї 1005 (b)[Deering's], (c)[Deering's] ; Cal. Rules of Ct., Rule 317(a)[Deering's] ]. Although Code Civ. Proc. Ї 1005(b)[Deering's] expressly provides that Code Civ. Proc. Ї 1013[Deering's] does not apply to papers governed by section 1005, it does not exclude application of Code Civ. Proc. Ї 1010.6(a)(6)[Deering's] , which would give the replying party a two court day extension if the opposition papers were served electronically under Code Civ. Proc. Ї 1010.6[Deering's] .

Reply papers on specific motions may, however, be subject to a different filing period [see, e.g., Cal. Rules of Ct., Rule 373(c)[Deering's] (15-day period to file response to opposition to motion for discretionary dismissal under Code Civ. Proc. Ї 583.410[Deering's] et seq. ); see also Bergman v. Rifkind & Sterling, Inc. (1991) 227 Cal. App. 3d 1380, 1384, 1386-1387, 278 Cal. Rptr. 583 (distinguishing between reply to opposition and document that merely provided procedural update)].
[11]--Decision Without Hearing
The court may determine a motion without permitting oral argument [ Sweat v. Hollister (1995) 37 Cal. App. 4th 603, 613, 43 Cal. Rptr. 2d 399 (disapproved on another point in Santisas v. Goodin (1998) 17 Cal. 4th 599, 609 n.5, 71 Cal. Rptr. 2d 830, 951 P.2d 399 ); but see Mediterranean Construction Co. v. State Farm Fire & Casualty Co. (1998) 66 Cal. App. 4th 257, 260, 262, 265-266, 77 Cal. Rptr. 2d 781 (construing ``hearing'' in summary judgment statute ( Code Civ. Proc. 437c[Deering's] ) to require opportunity for oral argument where litigants may address judge who will rule on motion; hearing on summary judgment involves contemporaneous presence, whether in person or electronically, of parties and judge; characterizing language in Sweat as dicta and refusing to follow it)]. Thus, a telephonic ruling may be the final ruling if the court so intends [see Sweat v. Hollister (1995) 37 Cal. App. 4th 603, 614, 43 Cal. Rptr. 2d 399 (court's telephonic ruling granting summary judgment was intended to be final, so plaintiff could not request oral argument and then voluntarily dismiss prior to the hearing; right to dismiss was cut off by final ruling on the motion even though the court retained power to amend that ruling); but see Mediterranean Construction Co. v. State Farm Fire & Casualty Co. (1998) 66 Cal. App. 4th 257, 260, 262, 265-266, 77 Cal. Rptr. 2d 781 ].

For discussion of tentative rulings, see [14], below.
[12]--Scheduling Hearing
The clerk is required to post a general schedule showing the days and departments for holding each type of law and motion hearing [ Cal. Rules of Ct., Rule 321(a)[Deering's] ]. If a matter will not be heard on the date scheduled, the moving party must immediately so notify the court [ Cal. Rules of Ct., Rule 321(b)[Deering's] ].
[13]--Notice of Nonappearance
A party may give notice that he or she will not appear at a law and motion hearing and submit the matter without an appearance unless the court orders otherwise [ Cal. Rules of Ct., Rule 321(c)[Deering's] ]. The court must rule on the motion as if the party had appeared [ Cal. Rules of Ct., Rule 321(c)[Deering's] ].
[14]--Tentative Rulings in Law and Motion Matters
The Judicial Council has recommended that each trial court should provide for a tentative ruling procedure for law and motion matters in civil cases that would make the rulings available at least 18 hours before the scheduled hearing. The procedure should provide notice of the court's views to (1) shorten the time for a hearing on the motion by focusing the discussion, or (2) eliminate the need to have parties or attorneys appear at the hearing [ Cal. Rules of Ct., Appen., Div. I, Ї 22 ].

Effective July 1, 2000, a court that offers a tentative ruling procedure must follow one of two procedures [ Cal. Rules of Ct., Rule 324(a)[Deering's] ].

The first procedure [ Cal. Rules of Ct., Rule 324(a)(1)[Deering's] ], requires the court to make its tentative ruling available by telephone, and, at the court's option, by any other method the court designates, by no later than 3:00 p.m. on the court day before the scheduled hearing. If the court desires oral argument, its tentative ruling must so direct. The ruling also may note any issues on which the court wishes the parties to provide further argument. Under this first procedure, if the court has not directed argument, then oral argument is permitted only if a party notifies all other parties and the court of its intention to appear by 4:00 p.m. on the court day prior to the hearing. This notice must be given by telephone or in person. The court shall accept telephone notice, and also has discretion to designate alternative methods by which a party intending to appear may give notice to the court. Under this first tentative ruling procedure, the tentative ruling becomes the court's ruling if the court has not directed oral argument and notice of intent to appear has not been given [ Cal. Rules of Ct., Rule 324(a)(1)[Deering's] ].

Under the second tentative ruling procedure [ Cal. Rules of Ct., Rule 324(a)(2)[Deering's] ], the court makes its tentative ruling available by telephone, and, at the court's option, by any other method the court designates, by a specified time prior to the hearing. The tentative ruling may note any issues on which the court wishes the parties to provide further argument at the hearing. Unlike the first procedure, this alternative procedure does not require the parties to give notice of intent to appear, and the tentative ruling does not automatically become the court's ruling if no such notice is given. The tentative ruling, or such other ruling as the court may render, will not become the court's final ruling until the hearing [ Cal. Rules of Ct., Rule 324(a)(2)[Deering's] ]. In addition, this procedure allows the court to establish the time at which a tentative ruling will be made available rather than requiring the ruling to be made available by 3:00 p.m. the court day before the scheduled hearing.

Other than following one of these two tentative ruling procedures, courts shall not issue tentative rulings except (1) by posting a calendar note containing tentative rulings on the hearing day, or (2) by announcing the tentative ruling at the time of oral argument [ Cal. Rules of Ct., Rule 324(b)[Deering's] ].

A court that follows one of the procedures prescribed in Rule 324(a) must so state in its local rules. The local rule must specify the telephone number for obtaining tentative rulings, as well as the time by which rulings will be available [ Cal. Rules of Ct., Rule 324(c)[Deering's] ].

If a court, or a branch of a court, adopts a tentative ruling procedure, then that procedure must be used by all judges in the court or branch who issue tentative rulings [ Cal. Rules of Ct., Rule 324(c)[Deering's] ].

Rule 324 does not require any judge to issue tentative rulings [ Cal. Rules of Ct., Rule 324(c)[Deering's] ].
[15]--Failure of Counsel to Appear at Hearing
If a party fails to appear at the law and motion hearing without having given a notice of nonappearance as required under Cal. Rules of Ct., Rule 321(c)[Deering's] , the court may take the matter off calendar, to be reset only on motion, or the court may rule on the matter [ Cal. Rules of Ct., Rule 321(d)[Deering's] ].
[16]--Telephone Appearance by Counsel
[a]--Superior Court
In superior court general civil cases as defined by Cal. Rules of Ct., Rule 200.1(2)[Deering's] , special proceedings of a civil nature such as unlawful detainer, and probate proceedings counsel has the option of appearing by telephone in any conference or law and motion or probate hearing at which witnesses are not called to testify, except as noted in [b], below [ Cal. Rules of Ct., Rule 298(a)[Deering's], (b)[Deering's] ; see Code Civ. Proc. Ї 1006.5[Deering's] ; Gov. Code Ї 68070.1(a)[Deering's] ].

The Judicial Council Standard of Judicial Administration for teleconferencing among other provisions, recommends that a court should consider, in awarding attorney's fees under any provision of law, whether an attorney is claiming fees for appearing in person in a proceeding in which that attorney could have appeared by telephone [ Cal. Rules of Ct., Appen., Div. I, Ї 21(d) ]. For further discussion of the Standard, see [j], below.
[b]--Exceptions
Personal appearances are required in the following proceedings [ Cal. Rules of Ct., Rule 298(c)[Deering's] ]:

З Settlement conferences, unless the court orders otherwise;

З Case management conferences, unless the court permits telephone appearances at those conferences; and

З Any hearing or conference for which the court, in its discretion, determines that a personal appearance would materially assist in a determination of the proceeding or in resolution of the case; the court must make this determination on a case-by-case basis.
[c]--Service Provider and Fees for Conference Call
A court may provide teleconferencing for court appearances by entering into a contract with a private vendor. The contract may provide that the vendor may charge the party appearing by telephone a reasonable fee, specified in the contract, for its services [ Cal. Rules of Ct., Rule 298(f)[Deering's] ]. A court may designate by local rule a particular conference call provider that must be used for telephone appearances [ Cal. Rules of Ct., Rule 298(i)[Deering's] ].
[d]--Audibility
The court must ensure that the statements of participants are audible to all other participants [ Cal. Rules of Ct., Rule 298(g)[Deering's] ].

The court must also ensure that a participant's statements are identified as being made by that participant [ Cal. Rules of Ct., Rule 298(g)[Deering's] ].
[e]--Recording of Proceedings
All proceedings involving telephone appearances must be reported to the same extent and in the same manner as if the participants appeared in person [ Cal. Rules of Ct., Rule 298(h)[Deering's] ].
[f]--Local Procedure
Each court is required to publish notice providing parties with the particular information necessary for them to appear by telephone at conferences and hearings in that court under Cal. Rules of Ct., Rule 298[Deering's] [ Cal. Rules of Ct., Rule 298(j)[Deering's] ].
[g]--Notice of Telephone Appearance
A party choosing to appear by telephone at a hearing must either [ Cal. Rules of Ct., Rule 298(d)(1)(A)[Deering's], (B)[Deering's] ]:

З Place the phrase ``Telephone Appearance'' below the title of the moving papers, or

З At least five court days before the appearance, notify the court and all other parties of the party's intent to appear by telephone. If the notice is oral, it must be given either in person or by telephone. If the notice is in writing, it must be given by filing a ``Notice of Intent to Appear by Telephone'' with the court at least five court days before the hearing and by serving the notice at the same time on all other parties by personal delivery, facsimile transmission, express mail, or other means reasonably calculated to ensure delivery to the parties no later than the close of the next business day.

For a form of separate notice of intent to appear by telephone at a hearing on a motion or other matter, see Ї 372.63. For a form that includes the alternative method of notice of telephone appearance in the caption of the first filed moving or opposing paper, see Ї 372.60.
[h]--Retraction of Notice of Telephone Appearance
If a party has given notice that it intends to appear by telephone subsequently chooses to appear in person, the party must so notify the court and all other parties that have appeared in the action, by telephone, at least two court days before the hearing [ Cal. Rules of Ct., Rule 298(d)(2)[Deering's] ].
[i]--Court Order for Appearance in Person After Notice of Telephone Appearance Has Been Given
If, after counsel has requested a telephone appearance under Rule 298(d), the court requires the personal appearance of the party, the court must, at least one court day before the hearing, notify by telephone all parties. If the court uses a telephonic tentative ruling system for law and motion matters, the notification that parties must appear in person may be given as part of the tentative ruling on a specific law and motion matter if the notification is given one court day before the hearing [ Cal. Rules of Ct., Rule 298(e)[Deering's] ]. For a discussion of the allowable telephonic tentative ruling systems, see [14], above.
[j]--Standard of Judicial Administration
In addition to the rules discussed in [a]-[i] above, Code Civ. Proc. Ї 1006.5[Deering's] requires the Judicial Council to adopt a Standard of Judicial Administration governing the appearance of counsel by telephone at any hearing of a demurrer, an order to show cause, or a motion heard before an action is called for trial [ Code Civ. Proc. Ї 1006.5(a)[Deering's] ]. The Standard must provide that counsel for a party to a civil action may appear by telephone at any of those hearings unless (1) the action or proceeding is one filed pursuant to the Family Code, (2) any party notices an intent to present oral testimony, or (3) the court orders the personal appearance of counsel [ Code Civ. Proc. Ї 1006.5(b)[Deering's] ].

The Judicial Council adopted a Standard of Judicial Administration for teleconferencing [see Cal. Rules of Ct., Appen., Div. I, Ї 21 ]. The minimum telephone equipment and optional features that the courts should provide are set out in Cal. Rules of Ct., Appen., Div. I, Ї 21(a), (b) . The Standard recommends that each court specify, by local rule or uniform local written policy, the types of motions and hearings it considers particularly suitable for hearing by telephone appearance, as well as whether the court or the attorney initiates the telephone call for a telephone appearance, whether the court sets a specified time for a telephone appearance or a time range, and how the parties are notified, in advance of the hearing, of the time or time range of the telephone appearance [ Cal. Rules of Ct., Appen., Div. I, Ї 21(e) ]. In those courts using a tentative ruling recording system, the notice of telephone appearance should be part of the tentative ruling recording [ Cal. Rules of Ct., Appen., Div. I, Ї 21(e) ].

The standard also recommends that each court's rule or policy encourage appearance by telephone in nonevidentiary civil matters if appearance of counsel in person would not materially assist in a determination of the proceeding or in settlement of the case [ Cal. Rules of Ct., Appen., Div. I, Ї 21(c) ].

The Standard further recommends that a court should consider, in awarding attorney's fees under any provision of law, whether an attorney is claiming fees for appearing in person in a proceeding in which that attorney could have appeared by telephone [ Cal. Rules of Ct., Appen., Div. I, Ї 21(d) ].
[17]--Evidence Considered at Hearing
[a]--Generally by Affidavit, Declaration, or Judicial Notice
Evidence received at a law and motion hearing must be by declaration and affidavit and by request for judicial notice without testimony or cross examination, except as allowed in the court's discretion for good cause shown [ Cal. Rules of Ct., Rule 323(a)[Deering's] ; see also Smith, Smith & Kring v. Superior Court (1997) 60 Cal. App. 4th 573, 578, 70 Cal. Rptr. 2d 507 (only evidence trial court should have considered is that contained in declarations filed in support of and in opposition to motion)].

Thus, the moving party is not required to attend the hearing for the purpose of testifying and allowing himself or herself to be cross examined [ McLellan v. McLellan (1972) 23 Cal. App. 3d 343, 359, 100 Cal. Rptr. 258 ]. The sufficiency of the affidavit or declaration is tested by the same rules as those applicable to oral testimony. By analogy to Evid. Code ЇЇ 700[Deering's] (providing that except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness) and 702[Deering's] (requiring that a witness have personal knowledge of the matter to which he or she is testifying and providing that against the objection of a party, personal knowledge must be shown before the witness may testify concerning the matter), any person is qualified to make an affidavit in support of a motion, and the person's affidavit or declaration is competent evidence unless an objection is interposed on the ground that the affiant or declarant has no personal knowledge of the matters stated [ McLellan v. McLellan (1972) 23 Cal. App. 3d 343, 359-360, 100 Cal. Rptr. 258 ].

Hearsay or other incompetent evidence in an affidavit received without a proper objection or motion to strike, is, however, to be regarded as competent evidence in support of the subsequent order [ Flood v. Simpson (1975) 45 Cal. App. 3d 644, 649, 119 Cal. Rptr. 675 ].

A court must, however, disregard facts contained in an unverified statement. Matters set forth in unverified Statements of Facts and in memoranda of points and authorities are not evidence and cannot provide the basis for the granting of the motion [ Smith, Smith & Kring v. Superior Court (1997) 60 Cal. App. 4th 573, 578, 70 Cal. Rptr. 2d 507 ].

For further discussion of the form and contents of affidavits and declarations under penalty of perjury, see Ch. 15, Affidavits, Certificates, and Declarations.
[b]--Oral Evidence
A party seeking permission to introduce oral evidence, except for oral evidence in rebuttal to oral evidence presented by the other party, must file no later than three court days before the hearing a written statement setting forth the nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the hearing; and when the statement is filed less than five court days before the hearing, the filing party must serve a copy on the other parties in a manner to assure delivery to the other parties no later than two days before the hearing [ Cal. Rules of Ct., Rule 323(b)[Deering's] ; see Ї 372.62].
[c]--Restrictions on Evidence on Particular Motions
On the other hand, the trial court, while empowered to exclude oral testimony, is also vested with discretion to receive it, and there are situations in which the trial judge, in the exercise of that discretion, properly should hear testimony or permit cross examination of a declarant. A refusal by the trial court to exercise its discretion in the matter, for example, by relying on an unwritten court ``policy'' purportedly precluding the use of oral testimony in family law matters estimated to consume more than one day in hearing, is error, and may result in reversal of the order [ Reifler v. Superior Court (1974) 39 Cal. App. 3d 479, 485, 144 Cal. Rptr. 356 ]. Also, evidence other than affidavits and declarations is admissible when an issue of fact is to be determined at the hearing on the motion [ Ascherman v. Superior Court (1967) 254 Cal. App. 2d 506, 510, 62 Cal. Rptr. 547 ].

There are, however, as already indicated, some exceptions to the rule authorizing use of affidavits on a motion. For example, in ruling on a motion to strike a pleading or matter from a pleading [see Code Civ. Proc. Ї 435[Deering's] et seq. ], the court is normally limited to examining the face of the challenged pleading and other matters appearing from the court's records, for example, the date of filing and rulings made on prior challenges to the pleading [see Ch. 375, Motions to Strike].

Also, oral testimony is not permitted on a motion for summary judgment. That motion is required to be determined on the affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice must or may be taken submitted in support of and in opposition to the motion [see Code Civ. Proc. Ї 437c(b)[Deering's] ; see also Ch. 537, Summary Judgment].
[d]--Judicial Notice
The court is required to take judicial notice of the matters specified in Evid. Code Ї 451[Deering's] . It may take judicial notice of the matters specified in Evid. Code Ї 452[Deering's] and is required to do so if a party so requests and (1) gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable the adverse party to prepare to meet the request; and (2) furnishes the court with sufficient information to enable it to take judicial notice of the matter [ Evid. Code Ї 453[Deering's] ].

The California Rules of Court require that a request that the court at a hearing on a motion take judicial notice must be made in a separate document listing the specific items for which notice is requested [ Cal. Rules of Ct., Rule 313(k) ; but see Code Civ. Proc. Ї 430.70[Deering's] (matter of which court is requested to take judicial notice in ruling on a demurrer to be specified in the demurrer or in the supporting points and authorities except as court may otherwise permit)].

A party requesting judicial notice of material under Evid. Code Ї 452[Deering's] or 453[Deering's] must provide the court and each party with a copy of the material and if it is part of a file in the court in which the matter is being heard, the party must (1) specify in writing the part of the file sought to be judicially noticed, and (2) make arrangements with the clerk to have the file in the courtroom at the time of the hearing [ Cal. Rules of Ct., Rule 323(c)[Deering's] ; see Cal. Rules of Ct., Rule 313(i)[Deering's] (requiring compliance with Rule 323)].

For discussion and forms relating to judicial notice, see Ch. 321, Judicial Notice.
[18]--Ruling on Motion
The court will normally rule on the motion at the hearing. If the court grants the motion, a formal order is normally required. Local rules in some courts require that proposed orders be lodged before the hearing [see, e.g., Alameda Co. Super. Ct. Rules, Rule 5.1 ]. The moving party may have prepared the formal order in advance of the hearing and, if it correctly reflects the court's ruling, both the order and copies may be handed to the courtroom clerk for the judge's signature and for conforming the copies. Otherwise, counsel will prepare the order after the hearing, secure opposing counsel's approval as to form, and submit it to the judge for his or her signature. Counsel will then have the copies conformed and serve a conformed copy on the adverse party's attorney or, if none, on the adverse party [see Code Civ. Proc. Ї 1015[Deering's] ; for further discussion, see Ї 372.24].

Unless the court is required by statute or case law to make a specific finding as a basis for a particular order, findings of fact are not required. The general rule in this regard is that findings of fact are not required, and, in fact, have no place in the court's ruling on a motion [ Waller v. Weston (1899) 125 Cal. 201, 204, 57 P. 892 ; see Allstate Ins. Co. v. Orlando (1968) 262 Cal. App. 2d 858, 867, 69 Cal. Rptr. 702 ; Skouland v. Skouland (1962) 201 Cal. App. 2d 677, 679, 20 Cal. Rptr. 185 ].

If the motion is denied, a formal order is not normally prepared. Whether the motion is granted or denied, however, a minute order is made which is entered in the court's permanent minutes. Rough minutes are not official court records, but if the only minutes kept by the court are the longhand minutes prepared during the course of the day, these constitute the permanent minutes [see Fortenberry v. Weber (1971) 18 Cal. App. 3d 213, 220, 95 Cal. Rptr. 834 (California courts as not having adopted any uniform method of keeping minutes and recording entry of minute orders in their records)].
[19]--Entry of Order on Motion
Orders are entered by either of two methods: (1) the court may order the clerk to enter a minute order, which when entered in the minutes is a written order of the court, or (2) the court may make a formal order, the entry of which consists of filing the signed order with the clerk [ Eldridge v. Superior Court (1989) 208 Cal. App. 3d 1350, 1354, 256 Cal. Rptr. 724 ].
[20]--Notification of Court's Ruling in Matter Taken Under Submission
If the court, instead of ruling on the motion at the hearing, takes the matter under submission, the court clerk is required to give the parties notification of the ruling or order. The notification, which must specifically identify the matter ruled on, may be given by mailing the parties a copy of the ruling or order. In a case having multiple parties, the notification, or any notice of a ruling or order served by a party, must name the moving party, the party against whom relief was requested, and must specifically identify the particular motion ruled on [ Cal. Rules of Ct., Rules 200.2(4)[Deering's], 301[Deering's], 303(b)[Deering's], 309[Deering's] ].
[21]--Effect of Clerk's Notification
Cal. Rules of Ct., Rule 309[Deering's] provides that the clerk's notification constitutes service of notice only if the clerk is required to give notice pursuant to Code Civ. Proc. Ї 664.5[Deering's] [see [22], below] and that failure of the clerk to give the notification does not extend the time provided by law for performing any act, except as provided in Cal. Rules of Ct., Rules 2(a)[Deering's] and 122(a)[Deering's] , respectively (relating to notice of appeal).

Notwithstanding the foregoing rule, notification given by the court clerk, although not required by Code Civ. Proc. Ї 664.5[Deering's] , may constitute notice that will commence the running of certain periods. For example, notice given by the clerk of the court's order denying a motion for summary adjudication of issues begins the running of the period within which a party must petition for review by writ under Code Civ. Proc. Ї 437c(m)[Deering's] [see Eldridge v. Superior Court (1989) 208 Cal. App. 3d 1350, 1353-1355, 256 Cal. Rptr. 724 (service by mail of file-stamped copy); Schmidt v. Superior Court (1989) 207 Cal. App. 3d 56, 60, 254 Cal. Rptr. 827 (service by mail of minute order)].
[22]--Required Notice of Ruling
In any contested action or special proceeding in which a prevailing party is represented by counsel, the party submitting an order or judgment for entry must prepare and mail a copy of the notice of entry of judgment to all parties who have appeared in the action or proceeding and file with the court the original notice of entry of judgment together with the proof of service by mail [ Code Civ. Proc. Ї 664.5(a)[Deering's] ]. This requirement does not apply to proceedings for voidable marriage, dissolution of marriage, legal separation, or to small claims actions [ Code Civ. Proc. Ї 664.5(a)[Deering's] ].

If a prevailing party is not represented by counsel in a contested action or special proceeding, the clerk of the court, promptly upon entry of judgment, is required to mail notice of entry of judgment to all parties who have appeared in the action or special proceeding and to execute a certificate of mailing and place it in the court's file in the cause [ Code Civ. Proc. Ї 664.5(b)[Deering's] ].

For purposes of Code Civ. Proc. Ї 664.5[Deering's] , ``judgment'' includes any judgment, decree, or signed order from which an appeal lies [ Code Civ. Proc. Ї 664.5(c)[Deering's] ].

In any action or special proceeding, the court may order the clerk to mail notice of entry of any judgment or ruling, whether or not appealable [ Code Civ. Proc. Ї 664.5(d) ].

Although the word ``judgment,'' as used in Code Civ. Proc. Ї 664.5[Deering's] , is defined in Code Civ. Proc. Ї 664.5(c)[Deering's] , the word ``order'' as used in Code Civ. Proc. Ї 664.5(a)[Deering's] is not. But because of its juxtaposition with the word ``judgment'' and the term ``entry of judgment,'' it would appear that the order referred to is one from which an appeal lies, whether or not it is signed. This construction appears to be strengthened by Code Civ. Proc. Ї 664.5(d) , which uses the word ``ruling'' instead of ``order,'' and which refers to nonappealability, providing that on order of the court in any action or special proceeding, the clerk shall mail notice of entry of any judgment or ruling, whether or not appealable.

Whether or not the order is one of which the clerk is required to give notice under Code Civ. Proc. Ї 664.5[Deering's] , and whether or not it is written or appealable, counsel for the prevailing party must give notice of the court's decision or order granting or denying a motion to all other parties or their attorneys, in the manner provided in Code Civ. Proc. Ї 1010[Deering's] et seq. (see discussion under Ї 372.24 and Ch. 518, Service of Summons and Papers), unless notice is waived by all parties in open court and is entered in the minutes [ Code Civ. Proc. Ї 1019.5(a)[Deering's] ; for a form of notice, see Ї 372.66].
[23]--Notice of Ruling on Court's Own Motion
When motion is granted or denied on the court's own motion, the court must give notice of its order in the manner provided in Code Civ. Proc. Ї 1010[Deering's] et seq. unless notice is waived by all parties in open court and is entered in the minutes [ Code Civ. Proc. Ї 1019.5(b)[Deering's] ].
Ї 372.22 Procedures on Orders to Show Cause
An order to show cause is secured on ex parte application. The procedure to be followed for securing its issuance is the same as for securing an order on ex parte application [see discussion under Ї 372.19]. The subsequent hearing on the order to show cause is conducted in substantially the same way as a hearing on a noticed motion and the court is vested with power to admit or reject oral testimony in its discretion [ Reifler v. Superior Court (1974) 39 Cal. App. 3d 479, 485, 114 Cal. Rptr. 356 ; see discussion under Ї 372.21[17] and [18]].

An order to show cause re contempt, however, is of a different character. Code Civ. Proc. Ї 1217[Deering's] specifically provides that in matters of indirect contempt, the court may examine witnesses for and against the alleged contemner [ Reifler v. Superior Court (1974) 39 Cal. App. 3d 479, 484-485, 114 Cal. Rptr. 356 ]. For procedures relating to contempt proceedings, see Ch. 135, Contempt.
Ї 372.23 Inability of Judge to Hear Parties
When a notice of motion is given, or an order to show cause is made returnable before a judge out of court, and at the time fixed for the motion, or the return day of the order, the judge is unable to hear the parties, the matter may be transferred by his or her order to some other judge before whom it might originally have been brought [ Code Civ. Proc. Ї 1006[Deering's] ].
Ї 372.24 Service of Papers
[1]--On Adverse Party or Attorney
Notices and other papers may be served on the party or attorney in the manner prescribed in Code Civ. Proc. ЇЇ 1010-1020[Deering's] when not otherwise provided by the Code of Civil Procedure [ Code Civ. Proc. Ї 1010[Deering's] ].

If the party to be served resides outside California and has no attorney in the action or proceeding, service may be made on the court clerk or judge, if there is no clerk, for the party. But in all cases where a party has an attorney in the action or proceeding, notices and papers must be served on the attorney instead of on the party. If the party's sole attorney is removed or suspended from practice, the party has no attorney within the meaning of the foregoing provisions. If the party's sole attorney has no known office in this state, notices and papers may be served by leaving a copy of them with the court clerk or with the judge if there is no clerk, unless the attorney has filed in the cause an address at which notices and papers may be served on him or her, in which event they may be served at that address [ Code Civ. Proc. Ї 1015[Deering's] ].
[2]--Exception in Case of Nonappearing or Defaulting Party
A notice of motion need not be served on any party whose default has been duly entered or who has not appeared in the action or proceeding [ Code Civ. Proc. Ї 1010[Deering's] ]. Common acts constituting an appearance are enumerated in Code Civ. Proc. Ї 1014[Deering's] , which also provides that where a defendant has not appeared, service of notice or papers need not be made on him or her.
[3]--Manners of Service
The manners in which papers may be served are set forth in Code Civ. Proc. ЇЇ 1011-1013[Deering's], 1015[Deering's], 1017[Deering's], 1020[Deering's] , and proof of service by mail is covered by Code Civ. Proc. Ї 1013a[Deering's] . For further discussion of service of papers, time requirements, a procedural guide, and forms for use in making proof of service, see Ch. 518, Service of Summons and Papers. For discussion of modifying time requirements for service of papers, see Ch. 524, Shortening and Extension of Time.
Ї 372.25 Sanctions Relating to Motions and Orders
[1]--Frivolous Motions, Harassment, and Delaying Tactics
In actions commenced in 1995 through 2005, sanctions for frivolous motions, harassment, and delaying tactics are governed by Code Civ. Proc. Ї 128.7[Deering's] [see Code Civ. Proc. Ї 128.7(b)[Deering's], (i)[Deering's], (j)[Deering's] ]. Section 128.7 requires the attorney of record, if any, to sign every written notice of motion or other similar paper [ Code Civ. Proc. Ї 128.7(a)[Deering's] ]. Presenting the paper to the court acts as a certification that the paper is not presented for an improper purpose and that it is not frivolous [ Code Civ. Proc. Ї 128.7(b)[Deering's] ]. Violation of this provision may be the basis of sanctions [ Code Civ. Proc. Ї 128.7(c)[Deering's] ]. For detailed discussion of the grounds and procedure for imposing sanctions, and what sanctions may be imposed, see Ch. 510, Sanctions.

In actions commenced prior to 1995, Code Civ. Proc. Ї 128.5[Deering's] authorizes the court to order a party, his or her attorney, or both, to pay any reasonable expenses, including attorney's fees, that are incurred by another party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay [ Code Civ. Proc. Ї 128.5(a)[Deering's] ]. ``Actions or tactics'' expressly include the making or opposing of motions [see Code Civ. Proc. Ї 128.5(b)(1)[Deering's] ]. The imposition of expenses under Code Civ. Proc. Ї 128.5[Deering's] is subject to notice and other procedural requirements [see Code Civ. Proc. Ї 128.5(c)[Deering's] ], and is in addition to any other liability for the same acts or omissions [see Code Civ. Proc. Ї 128.5(e)[Deering's] ]. For further discussion of Section 128.5 sanctions, see Ch. 510, Sanctions.

In actions commenced in 2006 and after, when Section 128.7 is automatically repealed [ Code Civ. Proc. Ї 128.7(j)[Deering's] ], it remains unclear what the law regarding sanctions for frivolous tactics will be, since Code Civ. Proc. Ї 128.6[Deering's] , which was to become effective in 2003, was superseded by the amended version of Code Civ. Proc. Ї 128.7[Deering's] . For discussion, see Ch. 510, Sanctions.
[2]--For Violation of Order
A judicial officer has the power to impose reasonable money sanctions, not exceeding $1,500, for a violation of a lawful court order that is without good cause or substantial justification, either by a witness, a party, his or her attorney, or both. This power does not apply to advocacy of counsel before the court [ Code Civ. Proc. Ї 177.5[Deering's] ]. For further discussion of Section 177.5 sanctions, see Ch. 510, Sanctions.
[3]--In Relation to Discovery
For discussion and forms relating to the imposition of monetary and other sanctions in connection with discovery motions and orders under the Discovery Act ( Code Civ. Proc. Ї 2016[Deering's] et seq. ), see Ch. 192, Discovery: Sanctions for Discovery Abuse.
ЇЇ 372.26-372.39 [Reserved]

Part III RESEARCH GUIDE
Ї 372.40 Related Matthew Bender Publications
For memoranda of points and authorities in support of and in opposition to the various motions, see specific titles in CALIFORNIA POINTS AND AUTHORITIES and the General Index to that publication
Ї 372.41 State Statutes
[1]--Appearance and Default
Service of notice on party whose default has been entered or who has not appeared in action or proceeding as not required. Code Civ. Proc. ЇЇ 1010[Deering's], 1014[Deering's]

Right of defendant after appearance, or defendant's attorney, to receive notice of all subsequent proceedings of which notice is required to be given. Code Civ. Proc. Ї 1014[Deering's]
[2]--Ex Parte Motions
Power of judges of Supreme Court and courts of appeal to grant certain orders on ex parte application at chambers. Code Civ. Proc. Ї 165[Deering's]

Power of superior court judges to grant certain orders on ex parte application at chambers. Code Civ. Proc. Ї 166(a)(1)[Deering's]

Power of court commissioners to hear and determine ex parte motions. Code Civ. Proc. Ї 259(a)[Deering's] ; Gov. Code Ї 72190[Deering's]
[3]--Motions
Power of court at chambers to hear and determine motions made pursuant to Code Civ. Proc. Ї 657[Deering's] (for new trial) or 663[Deering's] (to vacate judgment) and uncontested motions. Code Civ. Proc. Ї 166(a)(2)[Deering's]

Motion in civil action defined. Code Civ. Proc. Ї 1003[Deering's]

Court in which motion is to be made. Code Civ. Proc. Ї 1004[Deering's]

Motions for which notice must be given as prescribed in Code Civ. Proc. Ї 1005(b)[Deering's] . Code Civ. Proc. Ї 1005(a)[Deering's]

Time required for notice of motion; extensions of time when service is by mail, facsimile transmission, or overnight delivery; filing opposition. Code Civ. Proc. Ї 1005(b)[Deering's]

Supporting papers. Code Civ. Proc. ЇЇ 1005(b)[Deering's], 1010[Deering's]

Extension of time in case of electronic service. Code Civ. Proc. Ї 1010.6(a)(6)[Deering's]

Motion as deemed made on serving and filing notice. Code Civ. Proc. Ї 1005.5[Deering's]

Transfer to another judge of hearing of motion or order to show cause. Code Civ. Proc. Ї 1006[Deering's]

Requisites of notice of motion. Code Civ. Proc. Ї 1010[Deering's]

Motion, in special proceeding of civil nature, defined. Code Civ. Proc. Ї 1064[Deering's]
[4]--Orders
[a]--Amendment, Correction, and Setting Aside
Power of court to amend its orders to make them conform to law and justice. Code Civ. Proc. Ї 128(a)(8)[Deering's]

Relief from order taken through mistake, inadvertence, surprise, or excusable neglect. Code Civ. Proc. Ї 473(b)[Deering's]

Power of court to correct clerical mistakes in orders as entered. Code Civ. Proc. Ї 473(d)[Deering's]

Power of court on motion of party to set aside void order. Code Civ. Proc. Ї 473(d)[Deering's]
[b]--Definitions
Order in civil action defined. Code Civ. Proc. Ї 1003[Deering's]

Order in special proceeding of civil nature defined. Code Civ. Proc. Ї 1064[Deering's]
[c]--Exceptions to Orders
Orders deemed excepted to. Code Civ. Proc. Ї 647[Deering's]
[d]--Judgment Roll
Orders included in judgment roll. Code Civ. Proc. Ї 670[Deering's]
[e]--Notice of Order
Prevailing party in motion proceeding as required to give notice of court's decision or order unless otherwise ordered. Code Civ. Proc. Ї 1019.5(a)[Deering's]
[f]--Obedience and Disobedience
Willful disobedience or violation by attorney of court order as cause for disbarment or suspension. Bus. & Prof. Code Ї 6103[Deering's]

Power of court to compel obedience to its orders. Code Civ. Proc. Ї 128(a)(4)[Deering's]

Judicial officer as authorized, on proper notice, to impose monetary sanction, payable to county, for violation of lawful court order. Code Civ. Proc. Ї 177.5[Deering's]

Disobedience of lawful court order as contempt of court. Code Civ. Proc. Ї 1209(a)(5)[Deering's]

Willful disobedience of order lawfully issued by court as misdemeanor. Penal Code Ї 166(a)(4)[Deering's]

Willful resistance to lawful court order as misdemeanor. Penal Code Ї 166(a)(5)[Deering's]
[g]--Probate Proceedings
Form of probate orders. Prob. Code Ї 1047[Deering's]
[5]--Local Court Rules
Superior court judges empowered to adopt local court rules to expedite and facilitate business of court. Code Civ. Proc. Ї 575.1[Deering's]

Sanctions for failure to comply with local rules promulgated pursuant to Code Civ. Proc. Ї 575.1[Deering's] . Code Civ. Proc. Ї 575.2[Deering's]
[6]--Service of Notices and Orders
Extension of time when service is by mail, facsimile transmission, or overnight delivery. Code Civ. Proc. Ї 1005(b)[Deering's]

Service required. Code Civ. Proc. Ї 1010[Deering's]

Fax filing and service. Code Civ. Proc. Ї 1010.5[Deering's]

Electronic filing and service; extension of time. Code Civ. Proc. Ї 1010.6[Deering's]

Method and place of service on attorney or party. Code Civ. Proc. Ї 1011[Deering's]

Service by mail. Code Civ. Proc. Ї 1012[Deering's]

Method of service by mail. Code Civ. Proc. Ї 1013[Deering's]

Proof of service by mail. Code Civ. Proc. Ї 1013a[Deering's]

Service on attorney, court clerk, or judge for party. Code Civ. Proc. Ї 1015[Deering's]

Service of papers by telegraph. Code Civ. Proc. Ї 1017[Deering's]

Service by registered mail and exceptions. Code Civ. Proc. Ї 1020[Deering's]
Ї 372.42 California Rules of Court
[1]--Civil Law and Motion Rules
[a]--Applicability
Civil law and motion rules applicable in all trial courts. Cal. Rules of Ct., Rule 301[Deering's]

``Law and motion'' defined. Cal. Rules of Ct., Rule 303(a)[Deering's]

Application of Cal. Rules of Ct., Rules 235[Deering's] (orders extending time) and 200.3(b)[Deering's] (holidays, extensions of time, definitions) to proceedings under civil law and motion rules. Cal. Rules of Ct., Rule 303(b)[Deering's]

Preemption of local rules. Cal. Rules of Ct., Rules 981.1[Deering's]
[b]--General Provisions
Notice of determination of submitted matters. Cal. Rules of Ct., Rule 309[Deering's]

General format of papers. Cal. Rules of Ct., Rule 311[Deering's]

General filing requirements for motions and demurrers. Cal. Rules of Ct., Rule 312[Deering's]

Memoranda of points and authorities. Cal. Rules of Ct., Rules 313[Deering's], 314[Deering's]

Caption of declarations and affidavits. Cal. Rules of Ct., Rule 315(a)[Deering's]

Time for filing papers. Cal. Rules of Ct., Rule 317[Deering's]

Application for order shortening time. Cal. Rules of Ct., Rule 317(b)[Deering's]

Place and manner of filing. Cal. Rules of Ct., Rule 319[Deering's]

Time of hearing. Cal. Rules of Ct., Rule 321[Deering's]

Evidence at hearing. Cal. Rules of Ct., Rule 323[Deering's]

Ex parte applications and orders. Cal. Rules of Ct., Rule 379[Deering's]
[c]--Particular Motions and Proceedings
Substitution of party as attorney as required to include mailing address and phone number of party. Cal. Rules of Ct., Rule 315(b)[Deering's]

Change of venue. Cal. Rules of Ct., Rule 326[Deering's]

Amended pleadings and amendments to pleadings. Cal. Rules of Ct., Rule 327[Deering's]

Motions to strike. Cal. Rules of Ct., Rule 329[Deering's]

Discovery and discovery motions. Cal. Rules of Ct., Rules 331-341[Deering's]

Motions for summary judgment or summary adjudication. Cal. Rules of Ct., Rules 342-345[Deering's]

Receivers. Cal. Rules of Ct., Rules 349-355[Deering's]

Injunctions. Cal. Rules of Ct., Rules 359-363[Deering's]

Multiple-party cases. Cal. Rules of Ct., Rules 365[Deering's], 367[Deering's]

Motion to grant lien on cause of action. Cal. Rules of Ct., Rule 369[Deering's]

Arbitration. Cal. Rules of Ct., Rule 371[Deering's]

Dismissal for failure to prosecute. Cal. Rules of Ct., Rules 373[Deering's], 820[Deering's]

Continuance of civil cases set for trial. Cal. Rules of Ct., Rule 375(b)[Deering's]

Advance or reset cases for trial. Cal. Rules of Ct., Rule 375.1[Deering's]

Petition for approval of the compromise of a claim of a minor or incompetent person; order for deposit of funds; and petition for withdrawal. Cal. Rules of Ct., Rule 378[Deering's]

Bonds and undertakings. Cal. Rules of Ct., Rule 381[Deering's]

Service and filing of notice of entry of dismissal. Cal. Rules of Ct., Rule 383[Deering's]

Service and filing of notice of change of address of party or attorney. Cal. Rules of Ct., Rule 385[Deering's]
[2]--Superior Courts
Requirement that notices of motion for new trial be supported by memorandum of points and authorities. Cal. Rules of Ct., Rule 236.5[Deering's]

Contents of notice of motion to tax costs. Cal. Rules of Ct., Rule 870(b)(2)[Deering's]

Applications for and orders extending time. Cal. Rules of Ct., Rule 235[Deering's]

Hearing of motion to vacate judgment pursuant to Code Civ. Proc. Ї 663[Deering's] . Cal. Rules of Ct., Rule 236[Deering's]

Civil law and motion rules ( Cal. Rules of Ct., Rules 301-385[Deering's] ) applicable in superior courts. Cal. Rules of Ct., Rule 301[Deering's]
[3]--Appellate Departments
Applications on routine matters. Cal. Rules of Ct., Rule 137[Deering's]

Applications for orders extending or shortening time. Cal. Rules of Ct., Rule 138(b)-(d)[Deering's]
[4]--Supreme Court and Courts of Appeal
Motion requirements. Cal. Rules of Ct., Rules 41[Deering's], 42[Deering's]

Application on routine matters. Cal. Rules of Ct., Rule 43[Deering's]
Ї 372.43 Local Court Rules
NOTE

NOTE: Preemption of Local Rules. Local rules relating to ex parte applications, motions, and the form and format of papers are now preempted. Exceptions to the rule of preemption include local rules adopted under the Trial Court Delay Reduction Act [ Cal. Rules of Ct., Rule 981.1[Deering's] ].
[1]--Alameda County
Filing papers. Alameda Co. Super. Ct. Rules, Rule 5.1
[2]--Contra Costa County
Law and motion. Contra Costa Co. Local Ct. Rules, Rule 7
[3]--Los Angeles County
Assignments to departments. Los Angeles Co. Super. Ct. Rules, Rules 7.3, 7.4

Application for ex parte orders. Los Angeles Co. Super. Ct. Rules, Rules 9.9

Law and motion matters. Los Angeles Co. Super. Ct. Rules, Rule 9.0 et seq.
[4]--Marin County
General provisions of applications for ex parte orders. Marin Co. Rules, Civil 1.8
[5]--Orange County
Tentative ruling procedure. Orange Co. Super. Ct. Rules, Rule 382
[6]--Riverside County
Law and motion matters. Riverside Co. Super. Ct. Rules, Rule 2.0010 et seq.
[7]--Sacramento County
Law and motion matters. Sacramento Co. Super. Ct. Rules, Rule 3.00 et seq.
[8]--[Reserved]
[9]--San Francisco, City & County of
Law and motion matters generally. San Francisco Uniform Local Ct. Rules, Rule 8.0 et seq.

Filing papers. San Francisco Uniform Local Ct. Rules, Rule 2.8
[10]--San Mateo County
Law and motion matters generally. San Mateo Co. Super Ct. Rules, 3.1 et seq.
[11]--Santa Barbara County
Telephone appearance. Santa Barbara Co. Super. Ct. Rules, Rule 1005

Ex parte orders. Santa Barbara Co. Super. Ct. Rules, Rule 1009

Law and motion calendaring. Santa Barbara Co. Super. Ct. Rules, Rule 1301
[12]--Ventura County
Telephone appearance. Ventura Co. Super. Ct. Rules, Rule 7.0 et seq.

Law and motion calendar. Ventura Co. Super. Ct. Rules, Rule 8.04 et seq.
Ї 372.44 Decisions
[1]--Appearance at Hearing
Code Civ. Proc. Ї 1005.5[Deering's] , providing that motion on all grounds stated in written notice thereof as deemed to have been made and to be pending before court for all purposes on due service and filing of notice of motion, but that this shall not deprive party of hearing of motion to which he or she is otherwise entitled, as modernizing procedure by abolishing absolute requirement of appearance in court but as protecting right of either party to appear and be heard. Ensher, Alexander & Barsoom v. Ensher (1964) 225 Cal. App. 2d 318, 324-325, 37 Cal. Rptr. 327
[2]--Local Court Rules
Sanctions may be imposed for violation of local rules. Bergman v. Rifkind & Sterling, Inc. (1991) 227 Cal. App. 3d 1380, 1386, 278 Cal. Rptr. 583 (dicta; case imposed no sanction)

Local court rule that is inconsistent with statute is unenforceable and void. Wells Fargo Bank v. Superior Court (1988) 206 Cal. App. 3d 918, 922-923, 254 Cal. Rptr. 68 (holding local rule void due to conflict with Code Civ. Proc. Ї 437c[Deering's] , relating to motions for summary judgments, in that it required increased notice periods for certain motions)

Local court rule requiring noticed motion when statute and Judicial Council rule authorized ex parte motion conflicts with statute and Judicial Council rule and is void. Lang v. Superior Court (1984) 153 Cal. App. 3d 510, 513-516, 200 Cal. Rptr. 526
[3]--Notice as Process
Notice as ``process'' when it is given by authority of law for purpose of acquiring jurisdiction over defendant. Frey & Horgan Corp. v. Superior Court (1936) 5 Cal. 2d 401, 404, 55 P.2d 203
[4]--Notice Generally
When statute prescribes certain kind of notice, court is not justified in saying that some other kind of notice would be equally effective. Smith v. Board of Supervisors (1989) 216 Cal. App. 3d 862, 876, 265 Cal. Rptr. 466
[5]--Notice of Motion
General rule as being that notice of motion must be given whenever order sought may affect rights of adverse party. McDonald v. Severy (1936) 6 Cal. 2d 629, 631, 59 P.2d 98 ; Bohn v. Bohn (1913) 164 Cal. 532, 536, 129 P. 981 ; People ex rel. Dept. Public Wks. v. Loop (1958) 161 Cal. App. 2d 466, 474, 326 P.2d 902 ; Caledonian Ins. Co. v. Superior Court (1956) 140 Cal. App. 2d 458, 461, 295 P.2d 49
[6]--Orders
[a]--Appealability of Order
Appealability of void orders. Ivory v. Superior Court (1938) 12 Cal. 2d 455, 460-461, 85 P.2d 894

Legal effect of order as determinative of appealability. Nevada Constructors, Inc. v. Mariposa Pub. Utility Dist. (1952) 114 Cal. App. 2d 816, 818, 251 P.2d 53
[b]--Construction of Order
Resort to notice of motion in construing order. Western Greyhound Lines v. Superior Court (1958) 165 Cal. App. 2d 216, 219, 331 P.2d 793

Effect of order as determinative of its character. Sager v. O'Connell (1951) 107 Cal. App. 2d 391, 394, 237 P.2d 59
[c]--Entry and Effective Date of Order
When order becomes effective. Jablon v. Henneberger (1949) 33 Cal. 2d 773, 775-776, 205 P.2d 1 ; Miller v. Stein (1956) 145 Cal. App. 2d 381, 383-384, 302 P.2d 403

Essential elements for, and steps taken in, entry of order in court's permanent minutes. Desherow v. Rhodes (1969) 1 Cal. App. 3d 733, 741, 82 Cal. Rptr. 138 (disapproved on another point in Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal. 3d 660, 670-671, 125 Cal. Rptr. 757, 542 P.2d 1349 )
[d]--Form and Content of Order
Form and requisites of orders. Waller v. Weston (1899) 125 Cal. 201, 204, 57 P. 892 ; Cox v. Tyrone Power Enterprises (1942) 49 Cal. App. 2d 383, 389, 121 P.2d 829 ; Application of Gilreath (1959) 167 Cal. App. 2d 655, 656-657, 335 P.2d 203
[e]--Nunc Pro Tunc Orders
Function of nunc pro tunc is not to make order now for then, but to enter now for then order previously made. Siegal v. Superior Court (1968) 68 Cal. 2d 97, 101, 65 Cal. Rptr. 311, 436 P.2d 311

Perfection of appeal does not deprive court of its inherent power to remedy clerical error by entering omitted order nunc pro tunc. Bed, Bath & Beyond of La Holla, Inc. v. La Jolla Village (1997) 52 Cal. App. 4th 867, 883-884, 60 Cal. Rptr. 2d 830

Office of nunc pro tunc order is to cause record to show something done which was actually done but which by misprision or neglect was not at time entered in record and is not for purpose of declaring that something was done which was not done. City of Los Angeles v. Superior Court (1968) 264 Cal. App. 2d 766, 771, 70 Cal. Rptr. 826

Order directing clerk to enter defendant's default was proper, but its nunc pro tunc feature antedating order by eight months was invalid and ineffective to prevent defendant's motion for relief under Code Civ. Proc. Ї 473[Deering's] , relating to relief for mistake, inadvertence, surprise, or excusable neglect. Jonson v. Weinstein (1967) 249 Cal. App. 2d 954, 959, 58 Cal. Rptr. 32
[f]--Vacating Order
Order as not subject to being vacated except on direct attack unless inadvertently made, incorrectly entered, or void on its face. Thompson v. Thompson (1966) 247 Cal. App. 2d 339, 342, 55 Cal. Rptr. 518
[7]--Specifying Grounds on Which Motion Is Based
Failure to specify additional ground in notice of motion was properly disregarded when notice stated motion was based on accompanying papers and record and supplemental memorandum in support of motion addressed additional ground. Carrasco v. Craft (1985) 164 Cal. App. 3d 796, 808, 210 Cal. Rptr. 599
Ї 372.45 Law Reviews
Chance, Some Practical Suggestions on Defense Motions and Other Procedures Before Trial, 40 Cal. L. Rev. 192 (1952) (use of motions in pretrial procedure to facilitate disposition of case)

Proposals for legislation: making and presentation of motions, 27 Cal. St. B.J. 192

Legislation, The 1935 Changes in the Code of Civil Procedure, 9[Deering's] S. Cal. L. Rev. 335 (1936) (distance, service by mail, purpose of 1935 amendment)

Comment, Interstate Recognition of Alimony Decrees, 41 Cal. L. Rev. 692 (1953)

Note, Practice: Appearance; Effect of a Motion to Dismiss Plaintiff's Action for Failure to Prosecute, 31 Cal. L. Rev. 342 (1943)

Background and effect of 1959 amendment of Code Civ. Proc. Ї 1013a[Deering's], service by mail, proof, 34 Cal. St. B.J. 657

Note, Family Law: Appellate Contempt Jurisdiction Pending Custody Appeal: Continuing Jurisdiction of Trial Court Custody Orders Before the Appellate Court. Contempt: Requirement of Notice for Constructive Contempt: Contempt for Violation of a Statutory Stay, 42 Cal. L. Rev. 885 (1954)

Goodman, The Power of the Trial Judge to Change a Prior Ruling on a Motion, 45 Cal. St. B.J. 483 (1970)
Ї 372.46 Text References
Witkin, California Procedure, vol. 2, Jurisdiction, Ї 116; vol. 6, Proceedings Without Trial, Ї 1 et seq.; vol. 7, Judgment, Ї 8 (4th ed 1997)

California Civil Procedure Before Trial, vol. 1 (Cal. C.E.B. 3d ed. 1993)
ЇЇ 372.47-372.49 [Reserved]

Part IV PROCEDURAL CHECKLISTS
Ї 372.50 Noticed Motion--Moving Party
NOTE

NOTE: The following checklists are illustrative only of procedures commonly utilized and are not exhaustive. For procedures for motions seeking specific orders in particular actions or proceedings, see specific chapters in this set, such as Ch. 174, Costs and Attorney's Fees, Ch. 205, Defaults and Default Judgments, Ch. 212, Dismissal, and Ch. 537, Summary Judgment.
[1]--Facts to Be Ascertained
1. The facts which will establish the grounds of the motion and the evidence on which the motion will be based.

2. The names of the parties who have appeared in the action or proceeding [see Code Civ. Proc. ЇЇ 1010[Deering's], 1014[Deering's] ] in which the motion is to be made and, if they appeared in propria persona, their addresses or, if represented by counsel, the names and addresses of their attorneys of record [see Code Civ. Proc. Ї 1015[Deering's] ].

3. The practice or rules of the court in which the action or proceeding is pending governing motion procedure generally and specifically the manner of securing a hearing date and time, the dates and times available, and the department or room number in which the motion will be heard.

NOTE

NOTE: Procedure varies widely among courts and is usually covered by local court rule or policy. Statewide rule does, however, require that the court clerk post a general schedule showing the days and departments for holding each type of law and motion hearing [ Cal. Rules of Ct., Rule 321(a)[Deering's] ].
[2]--Preparation of Papers
1. Prepare the notice of motion [for a form, see Ї 372.60] in the following number of copies:

a. Original for filing.

b. One copy for delivery to court clerk with original where filing in duplicate is required by local court rule.

c. One copy for each other party's attorney or for the party if appearing in propria persona.

NOTE

NOTE: Many attorneys, as a matter of courtesy, will send two copies to the adverse party's attorney, one for the attorney, and one for the attorney's client.

d. One office copy.

e. One copy for client, if desired.

f. Other copies as desired.

2. Prepare the affidavit or declaration under penalty of perjury in support of the motion [for a form, see Ї 372.61] in the same number of copies as the notice [see Paragraph (1), above].

3. If oral evidence is to be introduced, prepare a written statement setting forth the nature and extent of any oral evidence proposed to be introduced and a reasonable time estimate for the hearing [for a form, see Ї 372.62].

NOTE

NOTE: At the hearing, evidence will be received only by declaration, affidavit, and request for judicial notice, without testimony or cross examination, except as allowed in the court's discretion for good cause shown [ Cal. Rules of Ct., Rule 323(a)[Deering's] ].

The statement relating to oral evidence must be filed no later than three court days before the hearing, and if it is filed less than five court days before the hearing, counsel must serve a copy on the moving party in a manner to assure delivery to the moving party no later than two days before the hearing [ Cal. Rules of Ct., Rule 323(b)[Deering's] ].

4. Prepare the memorandum of points and authorities in support of the motion [ Cal. Rules of Ct., Rules 301[Deering's], 313[Deering's] ] in the same number of copies as the notice [see Paragraph (1), above]. For a skeletal form of memorandum of points and authorities, and form, content, and style requirements, see Ch. 417, Points and Authorities. For memoranda of points and authorities supporting specific motions, see the appropriate title in CALIFORNIA POINTS AND AUTHORITIES (Matthew Bender).

NOTE

NOTE: A memorandum of points and authorities is not always required [ Cal. Rules of Ct., Rule 314[Deering's] , see Ї 327.21[5][c]].

5. Prepare proof of service [see Code Civ. Proc. Ї 1013a[Deering's] ; for forms of proof of service of papers, see Ch. 518, Service of Summons and Papers].

NOTE

NOTE: Proof of service by mail by counsel is made by a certificate signed by counsel [ Code Civ. Proc. Ї 1013a(2)[Deering's] ]. Proof of service by mail by a person other than counsel is made by affidavit, or declaration under penalty of perjury [ Code Civ. Proc. Ї 2015.5[Deering's] ], of the person making the service [ Code Civ. Proc. Ї 1013a(1)[Deering's] ].

The code fails to specify how proof of service pursuant to Code Civ. Proc. Ї 1011[Deering's] is to be made, but compliance with Code Civ. Proc. Ї 1013a[Deering's] , or with Code Civ. Proc. Ї 417.10(d)[Deering's] or 417.20(d)[Deering's] (written admission of party as, for example, by acknowledgment of receipt), would appear sufficient.

6. Sign the notice of motion. Although not required by statute or the California Rules of Court, counsel also normally signs the memorandum of points and authorities. Counsel has the person who made the declaration execute it, or, in the case of an affidavit, has the person subscribe and swear to its contents before an officer authorized to administer oaths [ Code Civ. Proc. ЇЇ 2012[Deering's], 2093[Deering's] ].

7. Attach an unsigned copy of the proof of service to the papers to be served or:

a. If service is to be by mail or overnight service, note the date and place of mailing or deposit with the delivery service on the papers served [see Code Civ. Proc. Ї 1013(b)[Deering's], (d)[Deering's] ].

b. If service is by facsimile transmission, note the date and place of transmission and the facsimile telephone number to which transmitted on the papers served [see Code Civ. Proc. Ї 1013(f)[Deering's] ].

8. Serve, or cause to be served, a copy of the notice of motion and supporting papers, if any [ Code Civ. Proc. Ї 1005(b)[Deering's] ; see also Code Civ. Proc. Ї 1005(a)[Deering's] (listing motions for which notice must be provided under Code Civ. Proc. Ї 1005(b)[Deering's] )], on counsel for each party who has appeared in the action or proceeding or, if a party has appeared in propria persona, on the party [ Code Civ. Proc. Ї 1015[Deering's] ], by one of the following methods [see Code Civ. Proc. ЇЇ 1005(b)[Deering's], 1010[Deering's] ]:

a. Delivery in person or as otherwise provided in Code Civ. Proc. Ї 1011[Deering's] .

NOTE

NOTE: Serve and file at least 21 calendar days before hearing date [ Code Civ. Proc. Ї 1005(b)[Deering's] ].

b. Mail.

NOTE

NOTE: Extends 21-day period by five calendar days if place of mailing and address are both in California; by 10 calendar days if either place of mailing or address is outside California, but in the United States; or by 20 calendar days if either place of mailing or address is outside the United States [ Code Civ. Proc. Ї 1005(b) ]. Service by mail is complete on the date of mailing [ Code Civ. Proc. Ї 1013(a)[Deering's] ].

c. Facsimile transmission.

NOTE

NOTE: Extends 21-day period by two calendar days [ Code Civ. Proc. Ї 1005(b)[Deering's] ].

d. Express Mail or other overnight delivery.

NOTE

NOTE: Extends 21-day period by two calendar days [ Code Civ. Proc. Ї 1005(b)[Deering's] ].

e. Electronic service.

NOTE

NOTE: Extension of 21-day period by two court days [ Code Civ. Proc. Ї 1010.6(a)(6)[Deering's] (unclear whether notice period or period to respond is extended, or both)].

9. Prepare the certificate, affidavit, or declaration of service setting forth the exact titles of the papers served [see Code Civ. Proc. Ї 1013a ; for a procedural guide and forms for proof of service, see Ch. 518, Service of Summons and Papers], execute it or have it executed by the person who made service, or, in the case of an affidavit, before a person authorized by law to administer oaths, and attach the original to the original of the papers which were served.

10. Present the original notice and attached affidavit or declaration and memorandum of points and authorities to the clerk of the court for filing [ Code Civ. Proc. ЇЇ 1005(b)[Deering's], 1010[Deering's] ] and request the clerk to fill in the date and time if that has not already been done by counsel and to place the motion on calendar.

NOTE

NOTE: The words ``serve and file'' mean that a paper filed in a court is to be accompanied by proof of prior service, in a manner permitted by law, of a copy of the paper on counsel for each adverse party who is represented by separate counsel and on each party appearing in person [ Cal. Rules of Ct., Rules 200.1(10)[Deering's], 303(b)[Deering's] ]. This procedure, however may be varied by local court rule, and the rules of the court in which the cause is pending should be checked if counsel is unfamiliar with them. The same time limits apply to filing the moving and supporting papers as apply to serving them [ Code Civ. Proc. Ї 1005(b)[Deering's] ; Cal. Rules of Ct., Rule 317(a)[Deering's] ; see Paragraph (8), above]. Proof of service of the moving papers must be filed no later than five calendar days before the time appointed for the hearing [ Cal. Rules of Ct., Rules 200.2(4)[Deering's], 301[Deering's], 303(b)[Deering's], 317(c)[Deering's] ; for discussion of apparent conflict between Cal. Rules of Ct., Rules 200.1(10)[Deering's] and 317(c)[Deering's] , in Ї 372.60[6][a]]. Unless otherwise provided by local court rule, all papers relating to a law and motion proceeding must be filed in the clerk's office [ Cal. Rules of Ct., Rules 200.2(4)[Deering's], 301[Deering's], 303(b)[Deering's], 319(a)[Deering's] ] by the close of business on the day the paper is due [ Cal. Rules of Ct., Rule 317(e)[Deering's] ; for discussion of late papers, see Ї 372.21[7]].

The papers may be presented to the court clerk in person or by mail at the convenience of counsel. If presented personally, counsel's office copy is file-stamped at that time and if the papers are presented by mail, a request is usually included, with a self-addressed stamped envelope, to return a file-stamped copy to counsel.

11. Pay the filing fee when the papers are presented for filing.

NOTE

NOTE: The fee is $33 [ Gov. Code Ї 26830[Deering's] ; for exceptions, see discussion under Ї 372.18].

12. If the motion is opposed, examine any affidavits, declarations, or memoranda of points and authorities filed by the opposing party and, if time permits, prepare in the same number of copies as the original and serve and file a reply memorandum of points and authorities, if permitted, with proof of service, in reply to the opposing party's memorandum. Local practice may vary, but usually a reply memorandum should be filed directly with the clerk of the law and motion department or division, rather than in the office of the court clerk, so that the court will have sufficient time to consider the memorandum prior to the hearing on the motion. For a skeletal form of memorandum of points and authorities and form, content, and style requirements, see Ch. 417, Points and Authorities.

NOTE

NOTE: Generally, reply papers must be filed and a copy served at least five calendar days before the hearing [ Code Civ. Proc. Ї 1005 (b)[Deering's], (c)[Deering's] ; Cal. Rules of Ct., Rule 317(a)[Deering's] ; but see Code Civ. Proc. Ї 1010.6(a)(6)[Deering's] (two court day extension if opposition papers were electronically served)].

13. If counsel does not intend to appear at the hearing, draft the notice of nonappearance in the same number of copies as the notice of motion and serve and file it, if this has not yet been done.

NOTE

NOTE: A party may give notice that he or she will not appear at a law and motion hearing and submit the matter without an appearance unless the court orders otherwise [ Cal. Rules of Ct., Rule 321(c)[Deering's] ]. The court must rule on the motion as if the party had appeared [ Cal. Rules of Ct., Rule 321(c)[Deering's] ].
[3]--Hearing and Order
1. Ascertain the court's tentative ruling, if available, prior to the hearing.

NOTE

NOTE: In many courts, the court's tentative ruling may be obtained by counsel prior to the time scheduled for the hearing. [see Cal. Rules of Ct., Rule 324[Deering's] ; Cal. Rules of Ct., Appen., Div. I, Ї 22 ].

2. If the matter is pending in a court that does not advise counsel of tentative rulings before the hearing, and the motion is unopposed, prepare the order granting the motion [see Paragraph (5), below] and present it to the court at the time of hearing for the judge's signature and for filing.

NOTE

NOTE: Counsel may also consider preparing the order in advance of the hearing, if the desired order will contain particular or detailed wording, so that counsel can recommend to the court the exact wording of the order if the court grants the motion. This procedure may avoid later disputes with opposing counsel as to the wording of the court order which may require an additional hearing to resolve.

If the order is prepared in advance and if the court grants the motion and adopts the recommended wording, the order may be presented to the court for signing and filing at the hearing.

3. Unless counsel has given notice of nonappearance [see [2], Paragraph (13), above], counsel for the moving party attends the hearing, briefly advises the court of the order requested, and presents oral argument in support of the motion. Counsel for the moving party may also present argument in opposition to any affidavit or declaration or memorandum of points and authorities served and filed by the opposing party.

NOTE

NOTE: If a party has requested the court to take judicial notice under Evid. Code Ї 452[Deering's] or 453[Deering's] of material that is a part of a file in the court in which the matter is being heard, the party must specify in writing the part of the file sought to be judicially noticed and make arrangements with the clerk to have the file in the courtroom at the time of the hearing [ Cal. Rules of Ct., Rule 323(c)[Deering's] ].

Statute provides that counsel have the option of appearing by telephone in any nonevidentiary law and motion and probate hearings and conferences and requires every superior court to provide for appearances of counsel in those hearings and conferences by telephone [ Gov. Code Ї 68070.1(a)[Deering's] ]. The Judicial Council has, among other things, recommended that each court specify, by local rule or uniform local written policy, the types of motions and hearings it considers particularly suitable for hearing by telephone appearance [ Cal. Rules of Ct., Appen., Div. I, Ї 21 ]. Thus, if counsel wishes to make a telephone appearance, he or she should consult the court's local rules or check with the clerk of that court to ascertain the procedure and costs. For further discussion, see Ї 372.21[16].

4. After argument by opposing counsel, counsel for the moving party may rebut that argument and submit the matter to the court.

5. If the motion is granted and counsel for the moving party has not already done so, he or she prepares the order granting the motion [for forms, see ЇЇ 372.64, 372.65] in the same number of copies as the notice of motion [see [2], Paragraph (1), above].

NOTE

NOTE: Some courts may require counsel preparing the order to submit it to opposing counsel for approval as to form before the order is presented to the court for signature. In such case, the notation ``Approved as to form'' appears at the bottom of the order and under it, the date and a place for counsel's signature appear. The order is then mailed to opposing counsel with a request that he or she sign the original and return it to counsel for the moving party.

6. Present the original and copies of the order to the clerk of the court or a deputy clerk, or to the judge's courtroom clerk, depending on local practice, with the request that he or she obtain the judge's signature, conform the copies, and file the original.

7. Deliver or send a conformed copy of the order to opposing counsel. Counsel for the prevailing party must also send or deliver notice of the court's decision or order to all other parties or their attorneys [ Code Civ. Proc. Ї 1019.5(a)[Deering's] ; for a form, see Ї 372.67].

NOTE

NOTE: Local court rules or practice should be consulted to determine if additional notice may be required.

8. If order is appealable, the action or proceeding is contested, and the prevailing party is represented by counsel, prepare a notice of entry of order granting motion [ Code Civ. Proc. Ї 664.5[Deering's] ; for a form, see Ї 372.66], mail a copy to all parties who have appeared, and present the original with proof of service to the court clerk, or a deputy court clerk, for filing. For procedure for serving and filing, see [2], Paragraphs (7)-(10), above.

NOTE

NOTE: If the order is intended to be used subsequently as the basis for the contempt proceedings for noncompliance therewith, personal service of the order on the party may be necessary. For discussion of the requirements relating to the mailing of notice of entry of a signed appealable order under Code Civ. Proc. Ї 664.5[Deering's] , see Ї 372.21[22].
Ї 372.51 Noticed Motion--Opposing Party
[1]--Preliminary Determinations
1. Examine the notice of motion to determine whether or not it has been timely given and the precise nature of the order sought.

NOTE

NOTE: For discussion of the time requirements of notices of motion, see Ї 372.21[2] and [3]. For discussion of opposition procedure when motion papers are not properly served or inadequate notice of hearing is received, see Ї 372.21[1].

2. Examine the supporting affidavit or declaration to determine whether or not it sets forth evidentiary facts to which the affiant or declarant is competent to testify and whether or not such facts would support the order sought. Also, compare the statements made in the affidavit or declaration with other statements, if any, made by the affiant or declarant in verified pleadings or in a deposition or other document in which the statements were made on oath or under penalty of perjury, to see if there are any inconsistencies.

3. Examine the supporting memorandum of points and authorities to determine (1) whether or not the points made would support the order sought and (2) whether or not the authorities cited support the point made. If the answer to both is affirmative, counsel will shepardize the cases cited to determine if they are still the law and will check any statutes cited to see if they have been amended or repealed.

NOTE

NOTE: Points may be inaccurately stated or not supported by the authorities cited. Moreover, a case cited may superficially support the point in that it makes an identical or similar statement but actually holds that the statement is not applicable to the facts of that case, or that the case presents an exception to the rule. In such situation, the case is not authority for the statement made, but rather, an authority in opposition to it.

4. If counsel determines that the points stated are inaccurate or that the authorities cited do not support them, counsel should so note and include such contentions in the memorandum of points and authorities in opposition to the motion.

5. If the motion is well taken, counsel will determine the advisability of not opposing it or of stipulating that the motion be granted and in such case may so advise counsel for the moving party.
[2]--Preparation of Papers
NOTE

NOTE: Any opposition to a motion in a case having multiple parties must specifically identify the moving party and the motion being opposed [ Cal. Rules of Ct., Rule 201(f)(6)[Deering's] ].

1. Prepare a memorandum of points and authorities in opposition to the motion in the following number of copies:

a. Original for filing.

b. One copy to be filed with original if required by local court rule.

c. One copy for the moving party's attorney of record or for the moving party if appearing in propria persona.

d. One copy for the attorney of record of each other party who has appeared in the action or for the party if appearing in propria persona.

e. One office copy.

f. One copy for client, if desired.

g. Other copies as desired.

NOTE

NOTE: For a skeletal form of memorandum of points and authorities and form, content, and style requirements, see Ch. 417, Points and Authorities. For memoranda of points and authorities opposing specific motions, see the appropriate title in CALIFORNIA POINTS AND AUTHORITIES (Matthew Bender).

2. If evidence in opposition to the motion is required, prepare the affidavit (or declaration under Code Civ. Proc. Ї 2015.5[Deering's] ), setting forth the evidence in opposition to the motion in the same number of copies as the memorandum of points and authorities, above.

3. If counsel for the opposing party wishes to introduce oral evidence, other than in rebuttal to any oral evidence presented by the moving party, prepare a written statement setting forth the nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the hearing [for a form, see Ї 372.62].

NOTE

NOTE: At the hearing, evidence will only be received by declaration, affidavit, and request for judicial notice without testimony or cross examination, except as allowed in the court's discretion for good cause shown [ Cal. Rules of Ct., Rule 323(a)[Deering's] ].

4. Sign the memorandum of points and authorities and have the person making the declaration and who is competent to testify as to its contents sign it, or, in the case of an affidavit, have the person subscribe and swear to its contents before an officer authorized to administer oaths [ Code Civ. Proc. ЇЇ 2012[Deering's], 2093[Deering's] ].

5. Serve and file the memorandum of points and authorities and, if any, affidavit, declaration, and/or statement relating to oral evidence. On serving and filing the papers, see Ї 372.50[2], Paragraphs 7-10.

NOTE

NOTE: All papers opposing a noticed motion be filed with the court and a copy served on each party at least 10 calendar days before the time appointed for the hearing [ Code Civ. Proc. Ї 1005 (b)[Deering's], (c)[Deering's] ; Cal. Rules of Ct., Rule 317(a)[Deering's] ; but see Code Civ. Proc. Ї 1010.6(a)(6)[Deering's] (two court day extension if moving papers were electronically served)]. The statement relating to oral evidence must be filed no later than three court days before the hearing, and if it is filed less than five court days before the hearing, counsel must serve a copy on the moving party in a manner to assure delivery to the moving party no later than two days before the hearing [ Cal. Rules of Ct., Rule 323(b)[Deering's] ]. The latest that a paper may be filed is at the close of business of the clerk's office on the day the paper is due [ Cal. Rules of Ct., Rule 317(e)[Deering's] ]. On the filing of late papers, see Cal. Rules of Ct., Rule 317(d)[Deering's] (discussed under Ї 372.21[7]).

6. If counsel does not intend to appear at the hearing, draft the notice of nonappearance in the same number of copies as the opposition papers and serve and file it.

NOTE

NOTE: A party may give notice that he or she will not appear at a law and motion hearing and submit the matter without an appearance unless the court orders otherwise [ Cal. Rules of Ct., Rule 321(c)[Deering's] ]. The court must rule on the motion as if the party had appeared [ Cal. Rules of Ct., Rule 321(c)[Deering's] ].
[3]--Hearing and Order
1. Unless counsel has given notice of nonappearance [see [2], Paragraph 6, above], counsel for the opposing party attends the hearing and presents oral argument to the court as to why the motion should not be granted or why it should be granted in a limited or conditional manner.

NOTE

NOTE: If a party has requested the court to take judicial notice of material under Evid. Code Ї 452[Deering's] or 453[Deering's] that is a part of a file in the court in which the matter is being heard, the party must specify in writing the part of the file sought to be judicially noticed and make arrangements with the clerk to have the file in the courtroom at the time of the hearing [ Cal. Rules of Ct., Rule 323(c)[Deering's] ].

Every superior court must provide counsel the option of appearing by telephone in nonevidentiary law and motion and probate hearings and conferences [ Gov. Code Ї 68070.1(a)[Deering's] ]. Counsel should contact the clerk of the superior court in which an action is brought to ascertain whether a rule allowing telephone appearances has been adopted [see, e.g., San Francisco Uniform Local Ct. Rules, Rule 8.2(A)(3) ]. For discussion of requirements and standards relating to teleconferencing, see Ї 372.21[16].

2. If the court denies the motion and a formal written order is required by the court, prepare the order denying the motion [for forms, see ЇЇ 372.64, 372.65] in the same number of copies as the memorandum of points and authorities [see [2], above].

NOTE

NOTE: For the procedure for obtaining the judge's signature to the order, filing it, conforming the copies, and notifying opposing counsel of the entry of the order, see Ї 372.50[3], Paragraphs 6-8, above.
Ї 372.52 Ex Parte Motion--Moving Party
[1]--Facts to Be Ascertained
NOTE

NOTE: The facts to be ascertained are the same as those required for a noticed motion. See Ї 372.50[1]
[2]--Preparation of Papers
1. Prepare the application, including the declaration relating to notice [for a form, see Ї 372.68], in the following number of copies:

a. Original for filing

b. One copy for filing with original if required by local court rule.

c. One copy for each other party's attorney of record or for the party if appearing in propria persona.

d. One office copy.

e. One copy for client, if desired.

f. Other copies as desired.

2. Prepare the order granting the motion [for a form, see Ї 372.69] in the same number of copies for the same distribution as the ex parte motion.

NOTE

NOTE: Unless the order is required by local court rule or practice to be set forth in a separate paper, it is normally appended at the end of the ex parte motion [for a form, see Ї 372.70].

3. Prepare the memorandum of points and authorities in the same number of copies and for the same distribution as the ex parte motion.

4. Sign the ex parte motion. Although not required by statute or the California Rules of Court, counsel also normally will sign the memorandum of points and authorities, if any.
[3]--Notice
Notify opposing counsel, or the opposing party if not represented by counsel, not later than 10:00 a.m. the court day before the ex parte appearance, of the time and place the ex parte motion will be presented to the court and of the order sought [see Cal. Rules of Ct., Rule 379(b)[Deering's] ; for discussion, see Ї 372.19[5]].
[4]--Presentation of Motion
Practice varies among the courts with respect to the judge or department to which the application must be presented; counsel should consult local court rules or practice, if counsel is unfamiliar with them. For general discussion, see Ї 372.19[4]. In any case, apperar personally unless the application is one of the following Cal. Rules of Ct., Rule 379(i)[Deering's] ]:

1. Applications to file points and authorities in excess of the applicable page limit.

2. Setting of hearing dates on alternative writs and orders to show cause.

3. Stipulations by the parties or other orders of the court.
[5]--Filing and Service
1. If the court signs the order, the originals of the ex parte motion, any supporting papers, and the order itself will be retained for filing. Counsel should have the court or courtroom clerk, as the case may be, file-stamp the copies of the ex parte motion and conform the copies of the order by stamping the judge's name on them.

2. Counsel will serve, or cause to be served, a file-stamped copy of the ex parte motion and supporting papers, if any, and a conformed copy of the order on counsel for each party who has appeared in the action or proceeding, or on the party if he or she has appeared in propria persona. If representing the prevailing party, counsel must also give notice of the court's decision or order [for a form, see Ї 372.67] to all other parties or their attorneys [ Code Civ. Proc. Ї 1019.5(a)[Deering's] ].

NOTE

NOTE: Service may be made by mail [see Code Civ. Proc. ЇЇ 1012[Deering's], 1013[Deering's] ] unless the local court rules require personal service, or the judge or commissioner in his or her order directs personal service, or the nature of the order is such as to require its prompt personal service, for example, an order shortening time for service of a notice of motion under Code Civ. Proc. Ї 1005[Deering's] .
[6]--Proof of Service
NOTE

NOTE: The manner of making proof of service is the same as for making proof of service of a notice of motion. See Ї 372.50[2], Paragraph 9.
[7]--Filing Proof of Service
Deliver the original of the proof of service to the court clerk for filing and have any retained copies file-stamped.
Ї 372.53 Ex Parte Motion--Opposing Party
If counsel for the opposing party, or the opposing party appearing in propria persona, has any grounds of objection to the order sought, he or she may appear at the time and place where the ex parte motion is to be presented and present the objections. As is the case with the moving party, opposing counsel should, if unfamiliar with local practice, check the rules and practice of the court in which the motion will be made to ascertain any requirements or limitations imposed on the manner in which the objections are to be made.
Ї 372.54 Written Motion Requiring Hearing--Moving Party
NOTE

NOTE: The following applies when a written motion, as opposed to a notice of motion, is used [for discussion, see Ї 372.16]. For procedures for use when a notice of motion is filed pursuant to Code Civ. Proc. Ї 1010[Deering's] , see Ї 372.50.
[1]--Facts to Be Ascertained
NOTE

NOTE: The facts to be ascertained are the same as those required for a noticed motion. See Ї 372.50[1].
[2]--Preparation and Filing of Motion
1. Prepare the motion [for a form, see Ї 372.72] in the following number of copies:

a. Original for filing.

b. One copy for filing with original if required by local court rule.

c. One copy for each other party's attorney of record or for the party if appearing in propria persona.

d. One office copy.

e. One copy for client, if desired.

f. Other copies as desired.

2. Sign the motion.

3. Present the original, and extra copy if required by local court rule, of the motion to the court clerk or a deputy court clerk for filing and have the clerk file-stamp the copies.

4. Pay the filing fee.

NOTE

NOTE: The fee is $23 [ Gov. Code Ї 26830[Deering's] ; for exceptions, see Ї 372.18].
[3]--Preparation of Notice of Hearing
Counsel will secure a hearing date from the court clerk, or deputy court clerk, or, depending on local court practice, will be notified of the hearing date by the court clerk, and will then prepare the notice of hearing [for a form, see Ї 372.73] in the same number of copies as the motion.

NOTE

NOTE: Statutes governing the particular motion or order sought may impose specific requirements. For example, Code Civ. Proc. Ї 484.330[Deering's] , relating to an application for a writ of attachment after a right to attach order has been issued requires that at least 15 days prior to the hearing on the application, a ``notice of application and hearing'' and a copy of the application must be served on the defendant. For the procedure to follow in applying for specified orders in probate proceedings, see Prob. Code Ї 1200[Deering's] et seq.
[4]--Service and Filing
1. Counsel will serve, or cause to be served, a copy of the notice of hearing, together with a file-stamped copy of the motion, on counsel for each party who has appeared in the action or proceeding, or if a party has appeared in propria persona, on the party [ Code Civ. Proc. Ї 1015[Deering's] ] by mail, facsimile transmission, or overnight delivery [ Code Civ. Proc. ЇЇ 1012[Deering's], 1013[Deering's] ], or by delivery in person, or as otherwise provided in Code Civ. Proc. Ї 1011[Deering's] . Papers served by mail, facsimile transmission, or overnight delivery should either bear a notation of the date and place of mailing or be accompanied by an unsigned copy of the affidavit, declaration [see Code Civ. Proc. Ї 2015.5[Deering's] ], or certificate of mailing, deposit, or transmission [see Paragraph 2, below], but this requirement is directory, not mandatory [ Code Civ. Proc. Ї 1013(b)[Deering's], (d)[Deering's], (f)[Deering's], (g)[Deering's] ].

2. Prepare the affidavit, or declaration, or certificate of service setting forth the exact titles of the papers served [see Code Civ. Proc. Ї 1013a[Deering's] ; for a procedural guide and forms of proof of service, see Ch. 518, Service of Summons and Papers], and execute it, or have it executed by the person who made service, or, in the case of an affidavit, before a person authorized by law to administer oaths.

3. Present the original of the notice of hearing, and a copy if required by local court rule, together with the original of the proof of service to the court clerk or a deputy court clerk for filing and have the clerk file-stamp the copies.
[5]--Hearing and Order
1. Attend, briefly advise the court of the order requested, and present any evidence supporting the granting of the motion in addition to that set forth in the application by affidavit or under penalty of perjury.

2. If the motion is granted, prepare the order granting the motion in the same number of copies as the motion [see [2] Paragraph 1, above].

NOTE

NOTE: Some courts may require counsel preparing the order to submit it to opposing counsel for approval as to form before the order is presented to the court for signature. In such case, the notation ``Approved as to form'' appears at the bottom of the order and, under it, the date and a place for counsel's signature appear. The order is then mailed to opposing counsel with a request that he or she sign the original and return it to counsel for the moving party.

3. Present the original and copies of the order to the clerk, a deputy clerk of the court, or to the judge's courtroom clerk, depending on local practice, with the request that he or she obtain the judge's signature, conform the copies, and file the original.

4. Deliver or send a conformed copy of the order to opposing counsel with the notice set forth in Paragraph 5, below.

NOTE

NOTE: Local court rules or practice should be consulted to determine if additional notice may be required. For example, local court rules or practice may require that notice of the court's ruling be given by the prevailing party to all counsel of record and litigants appearing in propria persona unless otherwise ordered or unless notice is waived by all parties in open court.

5. Prepare a notice of entry of order granting the motion and serve a copy of it on opposing counsel and deliver the original with proof of service to the court clerk or a deputy clerk. For procedure for serving and filing, see [4], above.

NOTE

NOTE: For the requirements relating to notice of the court's decision or order under Code Civ. Proc. Ї 1019.5(a)[Deering's] and to mailing of notice of entry of a signed appealable order under Code Civ. Proc. Ї 664.5[Deering's] see discussion under Ї 372.21[22].
Ї 372.55 Written Motion Requiring Hearing--Opposing Party
Counsel for the opposing party should check the local court rules and practice of the court in which the motion has been filed to determine if there are any requirements imposed on the manner of presenting opposition. If there are, counsel must, of course, comply with them. If there are none, counsel will present his or her opposition to the motion at the hearing where he or she will also have the opportunity to cross examine any witnesses produced by the moving party [see, e.g., Ї 372.51[3]].
ЇЇ 372.56-372.59 [Reserved]

Part V FORMS
Ї 372.60 Notice of Motion [Code Civ. Proc. Ї 1010; Cal. Rules of Ct., Rule 311]
[1]--FORM
Notice of Motion [Code Civ. Proc. Ї 1010; Cal. Rules of Ct., Rule 311]

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

)NO. __________
)NOTICE OF MOTION AND
)MOTION FOR ORDER ______
)_________ [specify
)order sought] [,
)SUPPORTING ____________
)___ (AFFIDAVIT or
)DECLARATION) OF _______
)________ (name), AND
)MEMORANDUM OF POINTS
)AND AUTHORITIES]
_________________________ [name], )[Telephone Appearance]
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

[EITHER ]

To _________________ [identify party, e.g., plaintiff _________________ (name)] and to _________________ [name] his/her attorney of record:

[OR ]

To each _________________ [identify party, e.g., plaintiff] named above, and to the attorney of record for each such party:

[CONTINUE ]

NOTICE IS HEREBY GIVEN that, on _________________ [date], at _________________ [time], or as soon thereafter as the matter may be heard, in [_________________ (Department or Division) _________________ of] this court, located at _________________ [street address], _________________ [city], _________________ [identify party, e.g., defendant] _________________ [name] will, and hereby does, move for an order _________________ [specify, e.g., dismissing the complaint on file in this action]. The motion will be made on the grounds that _________________ [specify legal grounds, e.g., the complaint was filed on _________________ (date), and the action has not been brought to trial within five years from that date].

The motion will be based on this notice of motion, on the _________________ [affidavit(s) or declaration(s)] of _________________ [name(s) ] and the memorandum of points and authorities served and filed herewith, on the records and file herein, and on such evidence as may be presented at the hearing of the motion.

Dated: _________________.

_________________ [ firm name, if any]
By: _________________ [signature]
_________________ [typed name]
Attorney for _________________ [moving party]
[2]--Use of Form
The form of notice of motion set out in [1], above, is for use in giving notice that a motion for a specified order will be made on the date and at the time set forth in the form. As an illustration, the foregoing form gives notice of a motion to dismiss an action for failure to bring it to trial within five years [see Code Civ. Proc. ЇЇ 583.310[Deering's], 583.360(a)[Deering's] ; see also Ch. 212, Dismissal].

However, if the court in which the cause is pending provides a printed form for use in making a specific motion, that form must be used.
[3]--Contents
[a]--Caption
[i]--Information Required Under Case Number
This form contains a caption complying with the requirements of Cal. Rules of Ct., Rule 201(f)[Deering's] . In addition, it meets the requirements of Cal. Rules of Ct., Rule 311(b)[Deering's] , which applies in all trial courts [ Cal. Rules of Ct., Rule 301[Deering's] ].

Rule 311(b) requires that the first page specify the following information immediately below the number of the case:

З The date, time, and location, if ascertainable, of any scheduled hearing and the name of the hearing judge, if ascertainable.

З The nature or title of any attached document other than an exhibit.

З The date of filing of the action.

З The trial date, if set.

If the paper is being filed in an action pending before a referee appointed pursuant to Code Civ. Proc. Ї 638[Deering's] or 639[Deering's] , the word ``Referee:'' followed by the name of the referee must be noted below the case number [ Cal. Rules of Ct., Rule 201(f)(8)[Deering's] ].

For a discussion of the manner of designating, in the caption, the nature of the papers [ Cal. Rules of Ct., Rule 201(f)(6)[Deering's] ], see [4], below.
[ii]--Telephone Appearance
Superior courts must provide for telephone appearances by counsel in law and motion hearings at which witness will not be called [ Gov. Code Ї 68070.1(a)[Deering's] ; see also Code Civ. Proc. Ї 1006.5[Deering's] (requires standards governing appearance by telephone at hearing of demurrer, order to show cause, or pretrial motion); Cal. Rules of Ct., Rule 298[Deering's] ]. A party who wishes to appear by telephone must notice that intention by placing the phrase ``Telephone Appearance'' below the title of the first-filed moving or opposing papers (as illustrated in the caption to the above form), or, at least five court days before the appearance, notify the court and all other parties of the party's intent to appear by telephone. If the notice is oral, it must be given either in person or by telephone. If the notice is in writing, it must be given by filing a ``Notice of Intent to Appear by Telephone'' with the court at least five court days before the hearing and by serving the notice at the same time on all other parties by personal delivery, facsimile transmission, express mail, or other means reasonably calculated to ensure delivery to the parties no later than the close of the next business day [ Cal. Rules of Ct., Rule 298(d)(1)(A)[Deering's], (B)[Deering's] ]. If a party has given notice that it intends to appear by telephone subsequently chooses to appear in person, the party must so notify the court and all other parties that have appeared in the action, by telephone, at least two court days before the hearing [ Cal. Rules of Ct., Rule 298(d)(2)[Deering's] ].

Counsel should check the local rules for the court in which an action is brought to ascertain the court's rules and policies governing telephone appearances. For discussion of teleconferencing procedures, see Ї 372.21[16].

For an alternative form of notice of intent to appear by telephone at a hearing on a motion or other matter, that is, by a separate notice, see Ї 372.63.
[iii]--Multiple Parties
The California Rules of Court require only that any opposition in a case having multiple parties must specifically identify the moving party and the motion being opposed [ Cal. Rules of Ct., Rule 201(f)(6)[Deering's] ].
[iv]--Reclassified Cases
Cal. Rules of Ct., Rule 201(f)(10)[Deering's] specifies that if a case is reclassified by an amended complaint, cross-complaint, amended cross-complaint, or other pleading under Code Civ. Proc. Ї 403.020[Deering's] or 403.030[Deering's] , the caption must indicate that the action or proceeding is reclassified by this pleading. If a case is reclassified by stipulation under Code Civ. Proc. Ї 403.050[Deering's] , the title of the stipulation must state that the action or proceeding is reclassified by this stipulation. The caption or title must state that the case is a limited civil case reclassified as an unlimited civil case, or an unlimited civil case reclassified as a limited civil case, or other words to that effect [ Cal. Rules of Ct., Rule 201(f)(10)[Deering's] ].
[v]--Additional Requirements
Local court rules have often contained additional requirements relating to the caption of papers, but the form and format of papers are governed exclusively by the California Rules of Court and to the extent local rules impose any conflicting or additional requirements regarding form or format, they should be considered null and void. Preemption extends generally to local rules relating to ex parte applications and motions as well as the form and format of papers, and is subject to several exceptions including rules adopted under the Trial Court Reduction Act [see Cal. Rules of Ct., Rule 981.1[Deering's] ].
[b]--Body
[i]--Required Elements
A motion and notice of motion, other than for a new trial, must identify the following:

З When it will be made [ Code Civ. Proc. Ї 1010[Deering's] ].

З The grounds on which it will be made [ Code Civ. Proc. Ї 1010[Deering's] ; Cal. Rules of Ct., Rules 311(a)[Deering's], 312(b)[Deering's] ].

З The papers, if any, on which it is to be based [ Code Civ. Proc. Ї 1010[Deering's] ].

З The party or parties bringing the motion [ Cal. Rules of Ct., Rule 312(b)[Deering's] ].

З The names of the parties to whom it is addressed [ Cal. Rules of Ct., Rule 312(b)[Deering's] ].

З If a pleading is challenged, the specific portion challenged [ Cal. Rules of Ct., Rule 312(b)[Deering's] ].

Cal. Rules of Ct., Rule 311(a)[Deering's] requires that a notice of motion state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order. The form complies with this requirement. Any papers on which the motion is based [see Code Civ. Proc. Ї 1010[Deering's] ] are identified in the second paragraph.

Formerly, a motion was made orally at the hearing. Technically this is no longer required, because Code Civ. Proc. Ї 1005.5[Deering's] now provides that a motion is deemed to be made when its notice is served and filed. Code Civ. Proc. Ї 1005.5[Deering's] , however, is designed to stop the running of any applicable time limit on making the motion; it does not convert the oral motion into a written motion or affect the contents of the notice required under Code Civ. Proc. Ї 1010[Deering's] [for further discussion, see Ї 372.21[8]]. Thus, the notice of motion continues to use the future tense in stating when the moving party ``will move'' for the order, on what grounds it ``will be made,'' and on what papers it ``will be based.''

Any previously filed paper that might be referred to in the notice of motion or supporting papers must be referred to by date of execution and title [ Cal. Rules of Ct., Rule 311(c)[Deering's] ].
[ii]--Hearing Date and Time
The local court rules and policies of the court in which the action is pending should, if counsel is unfamiliar with them, be checked to determine any local requirements with respect to the hearing. Some courts, for example, allow counsel to select the date and time of hearing of the motion from the dates and times the law and motion calendar is held. Other courts require that a hearing date and time be obtained from a court or courtroom clerk, or other designated clerk [see, e.g., Orange Co. Super. Ct. Rules, Rule 520 ]. In selecting a hearing date, counsel will want to keep in mind that the general statute, unless otherwise ordered or specifically required by law, requires at least 21 calendar days notice before the hearing, with extended periods when service is by mail, facsimile transmission, or overnight delivery [ Code Civ. Proc. Ї 1005(b)[Deering's] ; Cal. Rules of Ct., Rule 317(a)[Deering's] ; cf. Code Civ. Proc. Ї 1010.6(a)(6)[Deering's] (extension for electronic service); for discussion of Section 1005 notice, see Ї 372.21[2], [3]]. For discussion and forms for use in shortening the time to file and serve papers [see Code Civ. Proc. Ї 1005[Deering's] , Cal. Rules of Ct., Rule 317(b)[Deering's] ], see Ch. 524, Shortening and Extension of Time.

A maximum time limit in which to bring a motion may be imposed by statute [see, e.g., Code Civ. Proc. Ї 473.5[Deering's] (motion to vacate and set aside default and default judgment and for leave to answer)] or by local court rule or policy. The effect of such a local court rule or policy, however, is questionable in light of Cal. Rules of Ct., Rule 981.1[Deering's] , under which all local court rules concerning pleadings, demurrers, ex parte applications, motions, discovery, provisional remedies, and form and format of papers are null and void unless otherwise permitted or required by statute or Judicial Council rule.
[iii]--Department or Division
The clerk is required to post a general schedule showing the days and departments for holding each type of law and motion hearing [ Cal. Rules of Ct., Rule 321(a)[Deering's] ]. In multiple judge courts, motions before trial are normally heard in the law and motion department or division, if any, or if the case has been assigned, in the department or division to which it has been assigned. This practice may be varied by local court rule or policy either generally or with respect to motions seeking particular orders or motions in specified actions or proceedings.
[iv]--Grounds and Bases Distinguished
The grounds on which the motion is to be made are distinguished from the documentary and evidentiary bases for the motion. The grounds are the legal grounds authorizing the order sought [see also [4][e], below], whereas the bases of the motion are the papers and other evidence which will establish the grounds [see [4], below]. The grounds and bases should always be stated in separate paragraphs, as shown, to avoid confusing the two.

Only the grounds specified in the notice of motion may be considered by the court when hearing a noticed motion [ Gonzales v. Superior Court (1987) 189 Cal. App. 3d 1542, 1545, 235 Cal. Rptr. 106 ; see also [4][e], below].
[v]--Records and File
With respect to the phrase ``records and file herein'' as used in the last paragraph of the body of the form, the word ``file'' refers to the court's file of the case (there is but a single file for each case, regardless of how many manila folders might be required to contain it, in which all papers submitted for filing in the case are placed) and the term ``records'' refers to the court's various records in which entries relating to the case are made (e.g., the court's register of actions, the minute book, the judgment book).
[c]--Signing Notice of Motion
If the action or proceeding was commenced in 1995 through 2005 and the party is represented by an attorney of record, at least one attorney of record must sign the notice of motion in the attorney's individual name [ Code Civ. Proc. Ї 128.7(a)[Deering's],(i)[Deering's], (j)[Deering's] ; see also Ї 372.25]. If the party is not represented by an attorney, the party must sign. The notice must state the signer's address and telephone number, if any [ Code Civ. Proc. Ї 128.7(a)[Deering's] ].

An unsigned paper will be stricken unless the omission is corrected promptly after being called to the attention of the attorney or party [ Code Civ. Proc. Ї 128.7(a)[Deering's] ].

Presenting the motion to the court, whether by signing, filing, submitting, or later advocating it constitutes a certification that the motion is not filed for an improper purpose or frivolous [ Code Civ. Proc. Ї 128.7(b)[Deering's] ]. For discussion of the grounds and procedure for imposing sanctions, and what sanctions may be imposed, see Ch. 510, Sanctions.

Apart from this statutory requirement, case law requires notices of motion to be signed by the attorney of record (or by a person authorized to sign the attorney's name) [ Caldwell v. Geldreich (1955) 137 Cal. App. 2d 78, 82, 289 P.2d 832 ], and not by the party unless the party is appearing in propria persona [see Cowee v. Marsh (1958) 50 Cal. 2d 240, 244, 324 P.2d 553 ; McMahon v. Thomas (1896) 114 Cal. 588, 591, 46 P. 732 ; Harris v. Minnesota Investment Co. (1928) 89 Cal. App. 396, 401, 265 P. 306 ; Jansson v. National Steamship Co. (1917) 34 Cal. App. 483, 486, 168 P. 151 ].
[4]--Papers on Which Motion Is Based
[a]--Memorandum of Points and Authorities
A party filing a notice of motion, except for a new trial, is generally required to serve and file with it a memorandum of points and authorities to be relied on [ Cal. Rules of Ct., Rules 312(a)[Deering's], 313(a)[Deering's] ; see Cal. Rules of Ct., Rule 203[Deering's] (timing for points and authorities on motions for new trial)]. The absence of the memorandum may be construed by the court as an admission that the motion is not meritorious and cause for its denial [ Cal. Rules of Ct., Rule 313(a)[Deering's] ]. Certain motions, applications and petitions do not require a memorandum of points and authorities when filed on a Judicial Council Form [ Cal. Rules of Ct., Rule 314[Deering's] ]. For discussion of when a memorandum of points and authorities is required, see Ї 327.21[5][c].

For a skeletal form of memorandum of points and authorities, requirements governing the form, content, and style of the memorandum, and local court rules, see Ch. 417, Points and Authorities. For memoranda of points and authorities supporting various motions, see specific titles in CALIFORNIA POINTS AND AUTHORITIES (Matthew Bender).
[b]--Affidavits and Declarations
A notice of motion may be supported by affidavits [see Code Civ. Proc. ЇЇ 2002(1)[Deering's], 2003[Deering's], 2009[Deering's] ] or declarations under penalty of perjury [ Code Civ. Proc. Ї 2015.5[Deering's] ; Cal. Rules of Ct., Rules 312(a)[Deering's], 323(a)[Deering's] ; see Ї 372.61]. By analogy to Evid. Code Ї 700[Deering's] (relating to qualification of witnesses), any person is qualified to make an affidavit or declaration in support of a motion [ Flood v. Simpson (1975) 45 Cal. App. 3d 644, 649, 119 Cal. Rptr. 675 ; McLellan v. McLellan (1972) 23 Cal. App. 3d 343, 359-360, 100 Cal. Rptr. 258 ; see Ї 372.21[17]]. For illustrative forms of declarations supporting specific motions, see the appropriate titles in this publication.
[c]--Exhibits and Other Papers
Other papers, in addition to the points and authorities and declarations may be submitted in support of a motion, including exhibits, appendices, or other documents or pleadings [ Cal. Rules of Ct., Rules 312(a)[Deering's] ] and requests for judicial notice [see Cal. Rules of Ct., Rules 313(i)[Deering's] ].

Each exhibit must be separated by a hard 8 1/2 -by-11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided [ Cal. Rules of Ct., Rules 312(e)[Deering's] ].

Pages from a single deposition and associated exhibits must be designated as a single exhibit [ Cal. Rules of Ct., Rules 312(e)[Deering's] ].

If an exhibit is written in a foreign language, it must be accompanied by an English translation, certified under oath by a qualified interpreter [ Cal. Rules of Ct., Rules 312(e)[Deering's] ].
[d]--Combining or Attaching Papers; Pagination; Defective Title
The papers filed in support of a motion, including the notice of motion, the declaration, and the memorandum of points and authorities, may be filed as separate documents or may be combined in one or more documents if they are identified in the caption of the combined pleading. [ Cal Rules of Ct., Rule 312(a)[Deering's] ]. If the papers are combined, the declaration normally follows immediately at the end of the notice of motion, and the memorandum of points and authorities follows the declaration. Documents bound together must be consecutively paginated [ Cal. Rules of Ct., Rules 303(b)[Deering's], 311(b)[Deering's] ]. When the three papers are combined, only the notice of motion carries a caption, designating as the nature of the document all of these papers [ Cal. Rules of Ct., Rule 201(f)(6)[Deering's] ]. The purpose of this requirement is, of course, to assure that the filing of each paper is properly entered in the court's register of actions. If each paper carried its own caption, but was physically attached to the notice of motion, it is possible that only the filing of the notice of motion would be entered in the court's register.

If the papers are not combined or attached, each will carry its own caption.

An affidavit, declaration, notice, or other paper without the title of the action or proceeding in which it is made, or with a defective title, is, however, as valid and effectual for any purpose as if duly entitled if it intelligibly refers to the action or proceeding [ Code Civ. Proc. Ї 1046[Deering's] ].

All pages of each document and exhibit must be attached together at the top by a method that permits pages to be easily turned and the entire content of each page to be read [ Cal. Rules of Ct., Rules 312(d)[Deering's] ].
[e]--Use of Supporting Papers to Amplify Grounds
It has been held that matters stated in the affidavits (declarations) or argument in support of the motion may not expand the nature and grounds of the motion itself; that, unless leave of court is obtained, the motion may not be made on any grounds other than those enumerated in the notice of the motion; that if new matter were permitted in the actual motion, a notice of motion would be reduced to little purpose other than to advise of the time and place of hearing; and that, actually, the notice of motion must also sufficiently define the issues for the information and attention of the adverse party and the court [ Josephson v. Superior Court (1963) 219 Cal. App. 2d 354, 362, 33 Cal. Rptr. 196 ].

On the other hand, it has been held that a notice is adequate if it fairly advises opposing counsel of the issues to be raised and that documents referred to in, and attached to the notice, may be considered in determining the adequacy of the notice of motion [ Tarman v. Sherwin (1961) 189 Cal. App. 2d 49, 52, 10 Cal. Rptr. 787 ]. The court in Tarman acknowledged the rule stated in several cases that the notice of motion itself must set out the grounds, but pointed out that a long line of authority has held that affidavits accompanying a notice of motion, other documents in the court file, or affidavits and points and authorities filed with the notice, at least when specifically referred to in the notice, may be considered in amplification of the grounds stated in the notice and that it inclined to this rule [ Tarman v. Sherwin (1961) 189 Cal. App. 2d 49, 51-52, 10 Cal. Rptr. 787 ].

Given the requirements of Code Civ. Proc. Ї 1010[Deering's] and Cal. Rules of Ct., Rules 311(a)[Deering's] and 312(b)[Deering's] , that the grounds of the motion be stated in the motion and notice of motion, clearly counsel should state specifically all the grounds on which the motion is to be based in the notice of motion and should not rely on the court to consider supporting papers to broaden the motion.
[5]--When Motion Deemed Made
The motion is deemed to have been made and to be pending before the court on the due service and filing of the notice of motion [ Code Civ. Proc. Ї 1005.5[Deering's] ]. For further discussion, see Ї 372.21[8].
[6]--Service and Proof of Service
[a]--Notice of Motion
A notice of motion must be served and filed [see Code Civ. Proc. Ї 1005.5[Deering's] ; Cal. Rules of Ct., Rules 313(a)[Deering's], 317(a)[Deering's] ]. ``Serve and file'' is defined as meaning that the notice of motion filed in a court is to be accompanied by proof of prior service of a copy on counsel for each adverse party who is represented by separate counsel, and on each party appearing in person [ Cal. Rules of Ct., Rules 200.1(10)[Deering's], 303(b)[Deering's] ].

On the other hand, although Cal. Rules of Ct., Rule 317(a)[Deering's] requires that all moving and supporting papers be served and filed in accordance with Code Civ. Proc. Ї 1005[Deering's] (i.e., at least 21 days before the hearing), Cal. Rules of Ct., Rule 317(c)[Deering's] requires that proof of service of the moving papers be filed no later than five calendar days before the time appointed for the hearing. That is, the proof of service need not accompany the papers presented for filing. (It must, however, be kept in mind that under Code Civ. Proc. Ї 1005(b)[Deering's] , written notice of the motion must be given, i.e., served, at least 21 calendar days before the hearing, plus extended periods when service is by mail, facsimile transmission, or overnight delivery.) Cal. Rules of Ct., Rule 317(c)[Deering's] , therefore, seems to contemplate the following sequence: (1) the papers are filed; (2) the papers are served; and (3) the proof of service is filed. If this is so, there appears to be a conflict between Cal. Rules of Ct., Rule 317[Deering's] and Cal. Rules of Ct., Rule 200.1(10)[Deering's] .
[b]--Supporting Papers
A copy of any paper on which the motion will be based that was not previously served on the party to be notified, and was not filed by that party, must accompany the notice of motion [ Code Civ. Proc. Ї 1010[Deering's] ]. In addition, Code Civ. Proc. Ї 1005(b)[Deering's] requires that the notice of motion be accompanied by all supporting points and authorities, declarations, and other supporting materials [see also Cal. Rules of Ct., Rules 313(a)[Deering's], 317(a)[Deering's] ].
[7]--Duty of Counsel if Hearing Rescheduled
The moving party must promptly notify the court if a matter will not be heard on the scheduled date [ Cal. Rules of Ct., Rule 321(b)[Deering's] ].
[8]--Nonappearance of Counsel
A party may give notice that he or she will not appear at a law and motion hearing and submit the matter without an appearance unless the court orders otherwise. The court shall rule on the motion as if the party had appeared [ Cal. Rules of Ct., Rule 321(c)[Deering's] ]. If a party fails to appear at the law and motion hearing without having given a notice of nonappearance as required under Cal. Rules of Ct., Rule 321(c)[Deering's] , the court may take the matter off calendar, to be reset only on motion, or the court may rule on the matter [ Cal. Rules of Ct., Rule 321(d)[Deering's] ].
[9]--Cross References
For alternative forms of motions seeking specific orders, see the chapter in this publication relating to the specific procedure

For memoranda of points and authorities supporting and opposing noticed motions, see specific titles and the index in CALIFORNIA POINTS AND AUTHORITIES (Matthew Bender)

Witkin, California Procedure, vol. 2, Jurisdiction, Ї 116; vol. 6, Proceedings Without Trial, ЇЇ 1-43; vol. 7, Judgment, Ї 8 (4th ed. 1996, 1997)
Ї 372.61 Declaration Under Penalty of Perjury in Support of Motion [Cal. Rules of Ct., Rules 311(a), (b), 315(a)]
[1]--FORM
Declaration Under Penalty of Perjury in Support of Motion [Cal. Rules of Ct., Rules 311(a), (b), 315(a)]

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

)NO. _______________
_________________________ [name], )DECLARATION OF ________
)__ [name] IN SUPPORT
)OF __________ [party,
)e.g., DEFENDANT'S]
)MOTION FOR __________
)[specify]
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

I, _________________ [name], declare:

1. I am _________________ [identify declarant, e.g., an attorney at law duly admitted to practice before all the courts of California and the attorney of record herein for _________________ (identify moving party, e.g., defendant) or other statement as appropriate] and hereby make this declaration in support of _________________ [identify moving party, e.g., defendant's] motion for _________________ [specify].

2. _________________ [Here, and in subsequent paragraphs, set forth applicable facts to which declarant is competent to testify, or of which court must take judicial notice, or of which court may take judicial notice with request that it do so. If additional facts not within declarant's personal knowledge and not subject to judicial notice are required, secure from persons competent to testify to those facts additional declarations setting forth those facts, and attach those declarations to this declaration.]

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

_________________ [date]

_________________ [signature]
[2]--Use of Form
The form of declaration set out in [1], above, outlines the format requirements of a declaration in support of a noticed motion [see Code Civ. Proc. ЇЇ 2003 (affidavit defined), 2009, (use of affidavit in support of motion), 2015.5 (use of declaration in lieu of affidavit)].
[3]--Format of Caption
The caption of an affidavit or declaration must state the name of the affiant or declarant and specifically identify the motion or other proceeding which it supports or opposes [ Cal. Rules of Ct., Rule 315(a)[Deering's] ].

In addition, the first page of each paper filed must specify immediately below the number of the case (1) the date, time, and location, if ascertainable, of any scheduled hearing and the name of the hearing judge, if ascertainable; (2) the nature or title of any attached document other than an exhibit; (3) the date of filing of the action; and (4) the trial date, if set [ Cal. Rules of Ct., Rule 311(b)[Deering's] ; for further discussion, see Ї 372.60[4]].
[4]--Content of Declaration
For discussion of the requirements of an affidavit or declaration, see Ї 372.60[4]. Any previously filed paper that might be referred to in the affidavit or declaration must be referred to by date of execution and title [ Cal. Rules of Ct., Rule 311(c)[Deering's] ].
[5]--Evidence
Evidence received at a law and motion hearing must be by declaration and affidavit or by request for judicial notice without testimony or cross-examination, except as allowed in the court's discretion for good cause shown [ Cal. Rules of Ct., Rule 323(a)[Deering's] ]. A party seeking permission to introduce oral evidence, except for oral evidence in rebuttal to oral evidence presented by the other party, must file, no later than three court days before the hearing, a written statement setting forth the nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the hearing. When the statement is filed less than five court days before the hearing, the filing party must serve a copy on the other parties in a manner to assure delivery to the other parties no later than two days before the hearing [ Cal. Rules of Ct., Rule 323(b)[Deering's] ]. For a form of statement, see Ї 372.62.

A party requesting judicial notice of material under Evid. Code Ї 452[Deering's] or 453[Deering's] must provide the court and each party with a copy of the material. If the material is part of a file in the court in which the matter is being heard, the party must specify in writing the part of the file sought to be judicially noticed and make arrangements with the clerk to have the file in the courtroom at the time of the hearing [ Cal. Rules of Ct., Rule 323(c)[Deering's] ]. The request for judicial notice must in a separate document [ Cal. Rules of Ct., Rule 313(k)[Deering's] ]. For discussion and forms relating to judicial notice, see Ch. 321, Judicial Notice.
[6]--Cross References
For additional discussion of moving papers, see Ї 372.60[2] et seq.

For a form of affidavit, see Ch. 15, Affidavits, Certificates, and Declarations

For illustrative forms of declarations in support of specific motions, see the chapter in this publication relating to the specific topic
Ї 372.62 Written Statement of Oral Evidence to Be Introduced at Law and Motion Hearing [Cal. Rules of Ct., Rule 323]
[1]--FORM
Written Statement of Oral Evidence to Be Introduced at Law and Motion Hearing [Cal. Rules of Ct., Rule 323]

SUPERIOR COURT OF CALIFORNIA
COUNTY OF _________________

)NO. __________
_________________________ [name], )STATEMENT OF EVIDENCE
)TO BE INTRODUCED IN ___
)_______ [SUPPORT OF or
)OPPOSITION TO] ________
)__ [party, e.g.,
)DEFENDANT'S] MOTION
)FOR __________
)[specify]
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

Pursuant to Rule 323(b)[Deering's] of the California Rules of Court , _________________ [specify party seeking to introduce oral evidence] requests permission to introduce oral evidence and submits the following written statement of the nature and extent of the oral evidence to be introduced at the hearing:

NATURE OF THE EVIDENCE:

The evidence to be introduced at the law and motion hearing is _________________ [specify nature of evidence].

EXTENT OF THE EVIDENCE:

The evidence to be introduced at the law and motion hearing is _________________ [set forth extent of evidence].

The hearing shall take approximately _________________ [specify a reasonable time estimate for the hearing].

Dated: _________________.

_________________ [ firm name, if any]
By: _________________ [signature]
_________________ [typed name]
Attorney for _________________ [party]
[2]--Use of Form
The form in [1], above, is for use by a party seeking permission to introduce oral evidence, except for oral evidence in rebuttal to oral evidence presented by the other party, at a law and motion hearing. The statement must be filed no later than three court days before the hearing [ Cal. Rules of Ct., Rule 323(b)[Deering's] ].
[3]--Service of Statement
When the statement is filed less than five court days before the hearing, the filing party shall serve a copy on the other parties in a manner to assure delivery to the other parties no later than two days before the hearing [ Cal. Rules of Ct., Rule 323(b)[Deering's] ].
Ї 372.63 Notice of Intent to Appear by Telephone at Hearing on Motion
[1]--FORM
Notice of Intent to Appear by Telephone at Hearing on Motion

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

)NO. __________
_________________________ [name ], )NOTICE OF INTENT TO
)APPEAR BY TELEPHONE
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name ], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

To _________________ [identify party, e.g., defendant] _________________ [name], and to his/her attorney of record:

NOTICE IS HEREBY GIVEN that counsel for _________________ [identify party giving notice, e.g., Plaintiff] _________________ [name], intends to appear by telephone for hearing of the _________________ [specify matter to be heard at which appearance by telephone is permitted under the California Rules of Court, e.g., motion] noticed for _________________ [date], in [_________________ (Department or Division) _________________ of] this court.

_________________ [date]

_________________ [ firm name, if any]
By: _________________ [signature]
_________________ [typed name]
Attorney for _________________ [party giving notice]
[2]--Use of Form
The form in [1], above is for use by a party to give separate notice of his or her intent to appear by telephone at the hearing on a motion, instead of by personal appearance [see Cal. Rules of Ct., Rule 298[Deering's] ; see also Code Civ. Proc. Ї 1006.5[Deering's] (telephone appearances at hearing of demurrer, order to show cause, or pretrial motion); Gov. Code Ї 68070.1(a)[Deering's] (telephone appearances in nonevidentiary law and motion hearings)].

The notice must be served and filed at least five court days before the hearing [ Cal. Rules of Ct., Rule 298(d)(1)(B)[Deering's] ].

As an alternative to a separate notice, a party may place the phrase ``Telephone Appearance'' below the title of the moving or opposing papers [ Cal. Rules of Ct., Rule 298(d)(1)(A)[Deering's] ; see Ї 372.60].

If a party who notices a telephone appearance subsequently chooses to appear in person, that party must notify the court and the other parties by telephone at least two court days before the hearing [ Cal. Rules of Ct., Rule 298(d)(2)[Deering's] ].

For further discussion regarding appearance by telephone, see Ї 372.21[16].
Ї 372.64 Order [Code Civ. Proc. Ї 1003] Granting or Denying Motion--Without Findings
[1]--FORM
Order [ Code Civ. Proc. Ї 1003 ] Granting or Denying Motion--Without Findings

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

)NO. __________
_________________________ [name], )ORDER _______________
)[specify subject of
)order]
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

The motion of _________________ [identify party, e.g., defendant] _________________ [name] for an order _________________ [specify nature as in form in Ї 372.60[1] ] came on regularly for hearing by the court on _________________ [date]. Plaintiff appeared by counsel _________________ [name]; defendant appeared by counsel _________________ [name].

On proof made to the satisfaction of the court that the motion ought to be _________________ [granted or denied],

[EITHER ]

IT IS ORDERED that the motion be, and hereby is, granted and _________________ [set out the particular order sought ].

[OR ]

IT IS ORDERED that the motion be, and hereby is, denied.

Dated: _________________.

_________________ [signature]
Judge of the Superior Court
[2]--Use of Form
The form of order set out in [1], above, outlines the format requirements of an order granting or denying a motion [see Code Civ. Proc. ЇЇ 1003[Deering's], 1064[Deering's] (order defined)]. Written formal orders are ordinarily required if the motion is granted, but not if the motion is denied [see Ї 372.21[18], [20]-[22]]. If the court in which the cause is pending provides a printed form for use in granting a particular motion, that form must, of course, be used.
[3]--Content
The form contains a caption [see Cal. Rules of Ct., Rule 201(f)[Deering's] ]. It identifies the moving party, the order sought, the date of the hearing, and the names of counsel for the appearing parties, and sets forth the particular order granted or the court's ruling denying the motion. The order is also dated and contains the judge's signature.

The order does not include findings in accordance with the general rule that, unless required by statute or case law with respect to a specific order, findings have no place in an order granting or denying a motion [see Ї 372.21[18]]. For a form of order with findings, see Ї 372.65.
[4]--Cross References
For illustrative forms of orders granting or denying specific motions, see appropriate chapters in this publication
Ї 372.65 Order [ Code Civ. Proc. Ї 1003 ] Granting or Denying Motion--Order With Findings
[1]--FORM
Order [ Code Civ. Proc. Ї 1003 ] Granting or Denying Motion--Order With Findings

[Caption. See Ї 372.64[1].]

The motion of _________________ [identify party, e.g., defendant] _________________ [name] for an order _________________ [specify] came on regularly for hearing by the court on _________________ [date]. Plaintiff appeared by counsel _________________ [name]; defendant appeared by counsel _________________ [name].

The Court, having considered the _________________ [affidavit or declaration] and other documents in support of and in opposition to the motion, having heard the arguments of counsel, and being fully advised in the matter, finds as follows: _________________ [set out specific finding or findings required].

IT IS, THEREFORE, ORDERED that the motion be, and hereby is, granted and that _________________ [set out particular order sought].

Dated: _________________.

_________________ [signature]
Judge of the Superior Court
[2]--Use of Form
The form of order set out in [1], above, illustrates the manner in which findings are set forth in an order that, by statute or case law, may be granted only on the finding by the court of a specific fact or facts.

For example, Code Civ. Proc. Ї 473.5[Deering's] authorizes the court to set aside a default or default judgment on such terms as may be just and to allow the defendant to defend the action only on a finding that the defendant's motion to set aside the default or default judgment was made within the period permitted by Code Civ. Proc. Ї 473.5(a)[Deering's] , and that defendant's lack of actual notice of the action in time to defend was not caused by his or her avoidance of service of summons or inexcusable neglect [ Code Civ. Proc. Ї 473.5(c)[Deering's] ].

Another example is Fam. Code Ї 3020[Deering's] et seq. , relating to child custody. That section provides that before the court makes any order awarding custody to a person other than a parent, without the parents' consent, it must make a finding that an award of custody to a parent would be detrimental to the child and that the award to a nonparent is required to serve the child's best interests [ Fam. Code Ї 3041[Deering's] ].

For further discussion of orders, see Ї 372.64[2] et seq.
Ї 372.66 Notice of Entry of Order [Code Civ. Proc. ЇЇ 664.5] Granting or Denying Motion
[1]--FORM
Notice of Entry of Order [Code Civ. Proc. ЇЇ 664.5] Granting or Denying Motion

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

)NO. __________
_________________________ [name], )NOTICE OF ENTRY OF
)ORDER
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

To the above-named _________________ [identify party, e.g., defendant] and to _________________ [name], his/her/its attorney:

NOTICE IS HEREBY GIVEN that, on _________________ [date], the above-entitled court duly entered an order _________________ [granting or denying] the motion of _________________ [party] for an order _________________ [specify nature].

Dated: _________________.

_________________ [ firm name, if any]
By: _________________ [signature]
_________________ [typed name]
Attorney for _________________ [party's status and name]
[2]--Use of Form
The form of notice in [1], above, is for use by the party prevailing on a motion to give notice of the court's ruling or order to all other parties who have appeared in the action or proceeding [ Code Civ. Proc. Ї 664.5[Deering's] ; see also Code Civ. Proc. Ї 1010[Deering's] (notices in general)]. For discussion of when the notice is required, see Ї 372.21[22].
[3]--Multiple Parties
In a case having multiple parties, any notice of a court's ruling or order on a motion served by a party must name the moving party, the party against whom relief was requested, and specifically identify the particular motion ruled on [ Cal. Rules of Ct., Rules 200.2(4)[Deering's], 303(b)[Deering's], 309[Deering's] ].
[4]--Who Is Entitled to Notice
No notice or other paper, other than amendments to the pleadings or an amended pleading, need be served on any party whose default has been duly entered or who has not appeared in the action or proceeding [ Code Civ. Proc. Ї 1010[Deering's] ; see also Code Civ. Proc. Ї 1014[Deering's] (service of notice and papers need not be made on a defendant who has not appeared)]. But a defendant, after appearance, or his or her attorney [see Code Civ. Proc. Ї 1015[Deering's] ], is entitled to notice of all subsequent proceedings of which notice is required to be given [ Code Civ. Proc. Ї 1014[Deering's] ].
Ї 372.67 Notice of Court's Decision or Order Granting or Denying Motion [Code Civ. Proc. Ї 1019.5(a)]
[1]--FORM
Notice of Court's Decision or Order Granting or Denying Motion [Code Civ. Proc. Ї 1019.5(a)]

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

)NO. __________
)NOTICE OF __________
_________________________ [name], )[DECISION or ORDER]
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

To the above-named _________________ [identify nonprevailing party, e.g., defendant] and to _________________ [name], his/her/its attorney:

NOTICE IS HEREBY GIVEN that, on _________________ [date], the above-entitled court duly entered _________________ [an order or a decision] _________________ [granting or denying] the motion of _________________ [party] for _________________ [specify nature of requested decision or order].

Dated: _________________.

_________________ [ firm name, if any]
By: _________________ [signature]
_________________ [typed name]
Attorney for _________________ [party's status and name]
[2]--Use of Form
The form of notice in [1], above, may be used by the prevailing party to give notice to the adverse party of the court's decision or order granting or denying a motion [ Code Civ. Proc. Ї 1019.5(a)[Deering's] ; for discussion of this requirement, see Ї 372.21[22]]. The notice is in writing, as required by Code Civ. Proc. Ї 1010[Deering's] .
[3]--When Notice Is Required
When a motion is granted or denied, unless the court otherwise orders, notice of the court's decision or order must be given by the prevailing party to all other parties or their attorneys, in the manner provided in Code Civ. Proc. Ї 1010 et seq. [see Ї 372.24; Ch. 518, Service of Summons and Papers], unless notice is waived by all parties in open court and is entered in the minutes [ Code Civ. Proc. Ї 1019.5(a)[Deering's] ].
Ї 372.68 Ex Parte Motion or Application for Order--Skeletal Form
[1]--FORM
Ex Parte Motion or Application for Order--Skeletal Form

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

)NO. __________
_________________________ [name], )EX PARTE __________
)[MOTION or
)APPLICATION] FOR ORDER
)__________ [specify
)order sought]
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

[EITHER]

_________________ [Identify party, e.g., Defendant] _________________ [name] hereby _________________ [moves or applies] for an order _________________ [specify order sought]. This _________________ [motion or application] is made on the ground that _________________ [specify]. [A prior application was made on _________________ (date) for an ex parte order _________________ (describe prior application). The court refused that application _________________ (in whole or in part). This application _________________ (state why this application is being made, e.g., a different state of facts).] In support of this _________________ [motion or application], I, the undersigned, declare:

[OR]

_________________ [MOTION or APPLICATION]

_________________ [Identify party, e.g., Defendant] _________________ [name] hereby _________________ [moves or applies] for an order _________________ [specify order sought]. This _________________ [motion or application] is made on the ground that _________________ [specify]. [A prior application was made on _________________ (date) for an ex parte order _________________ (describe prior application). The court refused that application _________________ (in whole or in part). This application _________________ (state why this application is being made, e.g., a different state of facts).]

Dated: _________________.

_________________ [signature]
Attorney for _________________ [moving party]

DECLARATION

I, _________________ [name], declare:

[IN EITHER CASE CONTINUE]

1. I am the _________________ [attorney of record herein for _________________ (moving party) or _________________ moving party].

2. The name, address and telephone number of the _________________ [attorney for the opposing party or opposing party], as known to me, is _________________ [set out name, address, and telephone number].

[EITHER]

3. On _________________ [date], at _________________ [time], I informed _________________ [name], _________________ [name of opposing party or attorney person to whom notice was given], the opposing _________________ [party or party's attorney], of the date, time and place that the above application for an order _________________ [specify relief sought] would be made.

4. _________________ [name of opposing party or attorney person to whom notice was given] informed me that _________________ [describe response to notice, including whether or not opposition is expected].

[OR]

3. I attempted, in good faith, to inform _________________ [name], the opposing _________________ [party or party's attorney], of the time and place that the above application for an order _________________ [specify order sought] would be made. I was unable to do so even though _________________ [describe efforts made].

[OR]

3. Notice to the _________________ [name], the opposing _________________ [party or party's attorney], of the above application for an order _________________ [specify order sought] should not be required because _________________ [specify reason].

[CONTINUE]

5. _________________ [Set forth, in as many separately numbered paragraphs as necessary, facts within personal knowledge of applicant establishing irreparable harm, immediate danger, or any other statutory basis for granting ex parte relief rather than setting the matter for hearing on noticed motion].

6. _________________ [Set forth, in as many separately numbered paragraphs as necessary, facts within personal knowledge of applicant establishing right to order sought; if facts are not within applicant's personal knowledge, have person with knowledge make an affidavit or execute a declaration under penalty of perjury, attach affidavit or declaration to this application, and incorporate it by reference. Attach as many affidavits or declarations as are necessary to establish the required facts.]

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

_________________ [date]

_________________ [signature]
[2]--Use of Form
The form in [1], above, outlines the format and content of a written ex parte motion or application. Whether it should be referred to as a motion or an application depends on the language used in the statute or rule authorizing the particular motion or the relief sought.

If the court in which the action is pending provides a printed form for use in making the particular ex parte motion, that form must be used.

For a form of ex parte motion for an order revoking a prior order, see Ch. 374, Motions to Reconsider and Renewed Motions.

For forms of orders granting an ex parte motion, see ЇЇ 372.69 and 372.70. For a form of order to show cause that may be issued in response to an ex parte motion or application, see Ї 372.71.
[3]--Contents of Application
Although the declaration in support of the motion [see Code Civ. Proc. ЇЇ 2009[Deering's], 2015.5[Deering's] ] may be set forth separately, when the application and declaration are made by the same person, they are sometimes combined into a single paper. The form illustrates both alternatives.

The application must include a full disclosure of any prior applications of the same character or for the same relief that have been refused by the court in whole or in part, even if the current application is made on an alleged different state of facts. Both the prior applications and the courts actions must be disclosed [ Cal. Rules of Ct., Rule 379(d)(2)[Deering's] ]. The three optional sentences enclosed in brackets in unnumbered paragraph at the beginning of the form should be used if there have been prior applications that must be disclosed.

The application must state the name, address, and telephone number of any attorney known to the applicant to be an attorney for any party or, if no such attorney is known, the name, address, and telephone number of any unrepresented parties, if known to the applicant [ Cal. Rules of Ct., Rule 379(b)[Deering's] ]. Paragraph 2 of the declaration includes this information. Paragraph 2 reflects only one party. The form should be modified to list this information with respect to all parties where there is more than one that must be listed.

The application must include a declaration of notice [see [4], below], including the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected, or a declaration stating reasons why notice should not be required [ Cal. Rules of Ct., Rule 379(e)[Deering's] ; see Cal. Rules of Ct., Rule 379(a)[Deering's] (requiring declaration of notice, attempted notice, or reasons for not being required to give notice)]. The form includes this information in the alternative Paragraphs 3 (Paragraphs 3 and 4, in the case of the first alternative).

The application must make an affirmative factual showing in a declaration contianing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte [ Cal. Rules of Ct., Rule 379(g)[Deering's] ]. Paragraph 5 of the form provides a place for this information. This paragraph may need to be renumbered depending on which prior alternative paragraphs of the form are used.

Paragraph 6 of the form indicates where to begin the paragraphs setting forth the factual support for the substantive relief sought. This paragraph may need to be renumbered depending on which prior alternative paragraphs of the form are used. The information may be set out in as paragraphs as need, and may be set out in a completely separate declaration, if desired. This would often be done separately, particularly when this part of the declaration is being made by someone other than the attorney for the moving party. For forms of declarations to support the substantive basis of the application, see specific subject matter titles throughout this publication.
[4]--Notice Requirement
A party seeking an ex parte order must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance [ Cal. Rules of Ct., Rule 379(b)[Deering's] ].

An application for an order shall not be made ex parte unless it appears by affidavit or declaration (1) that, within a reasonable time before the application, the party informed the opposing party or the opposing party's attorney when and where the application would be made; or (2) that the party in good faith attempted to inform the opposing party and the opposing party's attorney but was unable to do so, specifying the efforts made to inform them; or (3) that, for reasons specified, the party should not be required to inform the opposing party or the opposing party's attorney [ Cal. Rules of Ct., Rule 379(a)[Deering's] ; see Cal. Rules of Ct., Rule 379(b)[Deering's] (declaration in support of motion); see also [3], above].
[5]--Accompanying Papers
Ex parte applications must be supported by a memorandum of points and authorities [ Cal. Rules of Ct., Rule 379(f)(4)[Deering's] ]. For forms of points and authorities, see the chapter in CALIFORNIA POINTS AND AUTHORITIES that relates to the particular subject matter of the application.

The application must include a proposed order [ Cal. Rules of Ct., Rule 379(f)(5)[Deering's] ]. For forms of proposed order, see ЇЇ 372.69 and 372.70.
[6]--Local Court Rules
Local court rules have often imposed requirements on the manner of presenting ex parte motions and should be checked if counsel is unfamiliar with them. Many local rules relating to ex parte applications and to the form or format of papers, however, are preempted by the California Rules of Court [ Cal. Rules of Ct., Rule 981.1[Deering's] ].
[7]--Cross References
For forms of ex parte applications for orders in attachment proceedings, see Ch. 62, Attachment

For a form of ex parte application in a claim and delivery proceeding, see Ch. 119, Claim and Delivery

For forms of ex parte applications for orders and orders to show cause in proceedings under the Family Code or in a harassment proceeding, see Ch. 220, Dissolution of Marriage and Related Proceedings, Pt. I, ``Procedure,'' and Ch. 293, Harassment and Domestic Violence

For a form of declaration supporting an ex parte application for a temporary restraining order and order to show cause, see Ch. 303, Injunctions

For forms for use in applying ex parte for orders shortening or extending time, see Ch. 524, Shortening and Extension of Time

For a form of declaration supporting an ex parte application for appointment of a receiver, see Ch. 486, Receivers

For memoranda of points and authorities in support of ex parte applications for orders, and for orders to show cause, see appropriate chapter in CALIFORNIA POINTS AND AUTHORITIES (Matthew Bender)
Ї 372.69 Order Granting Ex Parte Motion [Code Civ. Proc. Ї 1003]--Skeletal Form
[1]--FORM
Order Granting Ex Parte Motion [Code Civ. Proc. Ї 1003]--Skeletal Form

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

)NO. __________
_________________________ [name], )ORDER __________
)[specify]
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

Application having been made _________________ [by or on behalf of ] _________________ [moving party], and good cause appearing therefor,

IT IS ORDERED that _________________ [specify, including any limitations on order, conditions, or terms].

Dated: _________________.

_________________ [signature]
Judge of the Superior Court
[2]--Use of Form
The form in [1], above, outlines the format and content of an order granting an ex parte motion or application when a separate formal order is required [see Code Civ. Proc. Ї 1003[Deering's] (``order'' defined); see also Code Civ. Proc. Ї 166(a)(1)[Deering's] (power of court to grant ex parte motions)].

If the court in which the action is pending provides a printed form of order for use in granting the particular ex parte application, that form must be used.
[3]--Cross References
For the related form of ex parte application, see Ї 372.68

For an alternative short form of order that may be appended at the end of the ex parte motion or application, see Ї 372.70

For a skeletal form of order to show cause granted in response to an ex parte motion or application, see Ї 372.71

For a form of order granting an ex parte motion to revoke a prior order, see Ch. 374, Motions to Reconsider and Renewed Motions, ЇЇ 374.64, 374.65

For forms of orders extending or shortening time on ex parte application, see Ch. 220, Dissolution of Marriage and Related Proceedings, Pt. I, ``Procedure,'' and Ch. 524, Shortening and Extension of Time
Ї 372.70 Order [Code Civ. Proc. Ї 1003] Granting Ex Parte Motion--Short Form
[1]--FORM
Order [Code Civ. Proc. Ї 1003] Granting Ex Parte Motion--Short Form

[Attach to ex parte motion or application. See e.g., Ї 372.68[1]]

ORDER

Good cause appearing therefor, it is ordered that _________________ [specify order, including any limitations on order, conditions, or terms].

Dated: _________________.

_________________ [signature]
Judge of the Superior Court
[2]--Use of Form
The form of order in [1], above, is for use to grant an ex parte motion and is appended, without a separate caption, at the end of the application. For discussion of orders, see Ї 372.69[2] et seq.
Ї 372.71 Order to Show Cause--Skeletal Form
[1]--FORM
Order to Show Cause--Skeletal Form

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

)NO. __________
_________________________ [name], )ORDER TO SHOW CAUSE
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

To _________________ [identify party, e.g., defendant] _________________ [name]:

The ex parte application for an order _________________ [specify, e.g., appointing a receiver] being before this court, and good cause appearing therefor, [and _________________ (specify, e.g., plaintiff) having on _________________ [date], filed an undertaking in the amount of $_________________ as provided by Section 566[Deering's] of the Code of Civil Procedure , and this court having appointed _________________ (name) of _________________ (city), California, a receiver for the following described property: _________________ (describe)],

IT IS HEREBY ORDERED that _________________ [specify, e.g., defendant] _________________ [name] appear on _________________ [date], at _________________ [time] in [_________________ (Department or Division) _________________ of] this court, located at _________________ [address and room number, if any], _________________ [city], then and there to show cause, if any he/she/it has, why the _________________ [appointment of the receiver should not be confirmed or order(s) sought by the attached application should not be granted].

[This order shall be served on _________________ (specify, e.g., defendant) _________________ (name) by delivering a copy of it, together with a copy of the application attached, at least _________________ days prior to _________________ (date of hearing)].

Dated: _________________.

_________________ [signature]
Judge of the _________________ Court
[2]--Use of Form
The form in [1], above, outlines the requirements of an order to show cause and is for use where the order to show cause, in lieu of a notice of motion, is authorized or required, or where the party against whom it is directed has not yet appeared in the action or proceeding [see discussion under ЇЇ 372.17 and 372.22].
[3]--Application for Order
An order to show cause is secured on ex parte application [for a form of application, see Ї 372.68]. The application, like the affidavit or declaration submitted in support of a noticed motion, must set forth evidentiary facts that would justify issuance of the order. Since the order to show cause is a form of notice of motion, the application should, except where the facts are simple and the right to the order clear, be supported by a memorandum of points and authorities [see Cal. Rules of Ct., Rules 301[Deering's], 313(a)[Deering's] ], and this is sometimes expressly required [see, e.g., Code Civ. Proc. Ї 527[Deering's] (order to show cause in re preliminary injunction); Cal. Rules of Ct., Rules 351(b)[Deering's] (order to show cause why ex parte appointment of receiver should not be confirmed)].
[4]--Cross References
For an alternative form of order to show cause why an appointment of a receiver on ex parte application should not be confirmed, see Ch. 486, Receivers

For the Judicial Council approved forms of orders to show cause in attachment proceedings, see Ch. 62, Attachment

For forms of ex parte applications for orders and orders to show cause in proceedings under the Family Code or in a harassment proceeding, see Ch. 220, Dissolution of Marriage and Related Proceedings, Pt. I, ``Procedure,'' and Ch. 293, Harassment and Domestic Violence

For a form of order to show cause in re a preliminary injunction, see Ch. 303, Injunctions

For additional forms of orders to show cause relating to specific relief, see the appropriate titles in this publication
Ї 372.72 Written Motion or Application or Request or Petition for Order [Code Civ. Proc. Ї 1003]--Skeletal Form
[1]--FORM
Written Motion or Application or Request or Petition for Order [Code Civ. Proc. Ї 1003]--Skeletal Form

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

)NO. __________
)__________ [MOTION or
)APPLICATION or REQUEST
)or PETITION] FOR ORDER
_________________________ [name], )__________ [specify]
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

_________________ [Identify party, e.g., Plaintiff] _________________ [name] hereby _________________ [moves for or applies for or requests or petitions for] an order, to be made after hearing, directing _________________ [specify order sought]. This _________________ [motion or application or request or petition] is made on the ground that _________________ [specify] and is based on the following facts:

_________________ [specify facts].

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Dated: _________________.

_________________ [signature]
Attorney for _________________ [moving party]
[2]--Use of Form
The form in [1], above, illustrates the format of a written motion [for forms of written ex parte motions, see Ї 372.68]. Unlike a notice of motion [for a form, see Ї 372.60], but like ex parte motions, a written motion may, as a matter of practice, combine the application for the order with the affidavit [ Code Civ. Proc. Ї 2009[Deering's] ] or declaration [ Code Civ. Proc. Ї 2015.5[Deering's] ] establishing the ground or grounds of the motion. For the format to follow when the facts supporting the granting of the motion are set forth in a declaration separate from the motion, see Ї 372.68.

The titling of the paper as a motion, application, request, or petition follows the language of the statute authorizing either it or the relief sought.

The motion must identify the party or parties bringing the motion, name the parties to whom it is addressed, and if it challenges a pleading, identify the specific portion challenged [see Cal. Rules of Ct., Rule 312(b)[Deering's] ].
[3]--Accompanying Papers
The motion generally must be accompanied by a notice of hearing on the motion [see Ї 372.73] and a memorandum of points and authorities. Certain motions, applications and petitions do not require a memorandum of points and authorities when filed on a Judicial Council Form [ Cal. Rules of Ct., Rule 314[Deering's] ]. For discussion of when a memorandum of points and authorities is required, see Ї 327.21[5][c]. It may also be accompanied by other papers, such as supporting declarations, exhibits, or appendices [see Cal. Rules of Ct., Rule 312(a)[Deering's] ].
Ї 372.73 Notice of Hearing on Written Motion or Application or Request or Petition for Order
[1]--FORM
Notice of Hearing on Written Motion or Application or Request or Petition for Order

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

)NO. __________
)NOTICE OF HEARING ON __
)________ [MOTION or
)APPLICATION or REQUEST
)or PETITION] FOR ORDER
_________________________ [name], )__________ [specify]
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

To _________________ [identify party, e.g., plaintiff] _________________ [name] and to _________________ [name], his/her/its attorney:

NOTICE IS HEREBY GIVEN that _________________ [moving party] has filed _________________ [a motion or an application or a request or a petition] for an order _________________ [specify order sought], a copy of which is attached hereto and made a part hereof, and that a hearing on the _________________ [motion or application or request or petition] _________________ [has been set or will be held] in [_________________ (Department or Division) _________________ of] the above-entitled court, located at _________________ [address], _________________ [city], on _________________ [date], at _________________ [time].

Dated: _________________.

_________________ [signature]
Attorney for _________________ [moving party]
[2]--Use of Form
The form in [1], above, is for use by counsel for the moving party to give notice to the adverse party and his or her attorney that a motion has been filed and that it will be heard on the date and at the time specified [see Code Civ. Proc. Ї 1010[Deering's] (requirement that notice be in writing); see also Code Civ. Proc. Ї 1011[Deering's] et seq. (service of notices)]. The statutes governing the particular motion or the relief sought may, however, require inclusion in the notice of additional statements [see, e.g., Code Civ. Proc. Ї 484.050[Deering's] (notice of application and hearing in attachment proceeding)] and counsel should, if unfamiliar with them, check them before the notice is drafted.