EFFECTIVE MOTION

PRACTICE

Nadia Jamil Keilani

San Diego Superior Court

Probate Division

A MOTION IS NOT A PETITION

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A PETITION IS NOT A MOTION

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➢ If the authority for your request is found in the Probate Code

This is not a proper motion.

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➢ Familiarize yourself with the “Law and Motion” portion of our

Local Rules. (Division 4, Chapter 23, of the San Diego

Superior Court Local Rules.)

➢ Section 4.23.1(A) of the San Diego Superior Court Local Rules:

“An application for relief based upon the Probate Code must

be brought as a petition. An application for relief based upon

the Code of Civil Procedure or Civil Code must be brought as a

motion.”

➢ California Rules of Court, rule 3.1103(a) [“Law and motion”

includes any proceedings …On application before trial for an

order, except for causes arising under the … the Probate

Code.]

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MECHANICS OF MOTION PRACTICE

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Title 3, Division 11 of the California Rules of Court

➢ A motion must include a Notice of Motion, the motion

itself and a memorandum of points and authorities. (CRC

3.1112(a).)

➢ A clear statement of the nature of the request for relief

should be set forth in the Notice of Motion. (CRC

3.1110(a).)

➢ The memorandum of points and authorities “must contain

a statement of facts, a concise statement of the law,

evidence and arguments relied on, and a discussion of the

statutes, cases, and textbooks cited in support of the

position advanced.” (CRC 3.1113(b).)

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➢ Absent leave of court, the length of a memorandum of

points and authorities cannot exceed that set forth by CRC

3.1113(d). (CRC 3.1113(e).)

➢ “A memorandum that exceeds 10 pages must include a

table of contents and a table of authorities. A

memorandum that exceeds 15 pages must also include an

opening summary of argument.” (CRC 3.1113(f).)

➢ Use of footnotes and endnotes should be avoided.

➢ Use of a Judicial Council form, where available, is

preferred.

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➢ Exhibits to the motion should be tabbed and accompanied

by an index for ease of reference. (CRC 3.1110(f)(3).)

➢ Only relevant pages of a deposition transcript need be

submitted as an exhibit. The relevant portion of the

testimony must be “marked in a manner that calls attention

to the testimony.” (CRC 3.1116(c).)

➢ Supporting declarations should be filed rather than lodged

with the court so that they may be part of the permanent

court record. (CRC 3.1302(a).)

➢ Proof of service of the motion must be filed no later than

five court days prior to the hearing and must indicate

compliance with CCP § 1005. (CRC 3.1300.)9

PRACTICALITIES OF MOTION PRACTICE

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➢ Legal citation should always be offered in support of

arguments.

➢ Always check citations for accuracy.

➢ When relying on secondary authority such as The Rutter

Group or Witkin, it is best to cite to the primary legal

authority contained therein and not to the secondary

authority itself.

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➢ Avoid personal attacks against the opposing party or their

counsel in your legal briefs. These attacks are not

considered by the court and only serve to denigrate the

quality of the debate.

➢ Legal briefs should be concise and to the point, avoiding

mention of non-legal quotations or literary references.

➢ Motions should be supported by evidence. Facts alleged in a

legal brief will be ignored unless supported by a declaration

or some other form of competent evidence.

➢ Always check the court’s website for a tentative ruling and

be prepared to address the issues raised by the ruling at oral

argument.

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➢ Immediately notify the court if a motion needs to go off

calendar.

➢ If your motion is time-sensitive, e.g., motion for new

trial, call the Probate Business Office and request an

earlier hearing date.

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SPECIFIC MOTIONS

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Motions for Summary Judgment/Adjudication

➢ Specify whether you are seeking only a motion for

summary judgment or an alternative motion for summary

adjudication as well. (Homestead Sav. v. Sup.Ct.

(Dividend Develop. Corp.) (1986) 179 Cal.App.3d 494,

498.)

➢ A separate statement of undisputed facts must be offered

in support of both the motion and the opposition. (CRC

3.1350(c)(2).)

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Motions for Summary Judgment/Adjudication

➢ A separate statement of undisputed facts is not necessary

or authorized in support of a reply brief. (See San Diego

Watercrafts, Inc. v. Wells Fargo Bank (2002) 102

Cal.App.4th 308.)

➢ If you are seeking summary adjudication, whether

separately or as an alternative to summary judgment,

“the specific cause of action, affirmative defense, claims

for damages, or issues of duty must be stated specifically

in the notice of motion and be repeated, verbatim, in the

separate statement of undisputed material facts.” (CRC

3.1350(b).)

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Motions for Summary Judgment/Adjudication

➢ Clearly identify the undisputed facts in your motion and

tailor your arguments around those facts.

➢ Do not target your motion to a prayer for relief, but to a

cause of action, an issue of duty, a claim for damages or

an affirmative defense.

Caveat: New rule allows parties to stipulate to “summary

adjudication of a legal issue or a claim for damages other

than punitive damages that does not completely dispose of a

cause of action, affirmative defense, or issue of duty

pursuant to this subdivision.” (CCP § 437c(t).) 17

Motions for Summary Judgment/Adjudication

➢ Evidentiary objections to the motion or opposition must

comply with CRC 3.1354.

➢ Evidentiary objections must be to the evidence offered in

support of the motion and not to the arguments contained

in the memorandum of points and authorities or to the

separate statement of undisputed facts. (CRC 3.1354.)

➢ Cite to evidence rather than the separate statement

wherever appropriate and clearly mark your exhibits so

that particular documents can be easily and quickly

located to by the court.

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Motions for Summary Judgment/Adjudication

➢ Disturbing new trend: using CCP §

128.7 sanctions procedure as an

alternative to an MSJ or demurrer.

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Demurrers

➢ Do they belong in probate?

➢ Strongly consider if a demurrer to a probate petition is

appropriate. Often times probate petitions do not easily

lend themselves to demurrer.

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Demurrers

➢ “A demurrer does not lie to a portion of a cause of action

…” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th

1680, 1682), and “must dispose of an entire cause of

action to be sustained.” (Fremont Indemnity Co. v.

Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

➢ A demurrer also does not lie to a type of damage or

remedy. (Kong v. Hawaiian Gardens Redevelopment

Agency (2002) 108 Cal.App.4th 1028, 1047.)

➢ Do not target the demurrer to a request for relief, i.e., a

remedy, but to a cause of action only. 21

➢ Each ground for the demurrer must be separately stated

and must specify whether it applies to the entire

complaint, cross-complaint or answer. (CRC 3.1320(a).)

➢ Do not argue the facts. The allegations in the pleading are

taken as true for purposes of demurrer.

Demurrers

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Demurrers

➢ Prior to bringing a demurrer, you must meet and confer with opposing counsel to see if you can come to an agreement regarding an amendment to the pleading at issue. (CCP § 430.41.)

➢ The same is true when bringing a motion to strike (CCP §435.5) or a motion for judgment on the pleadings (CCP §439).

➢ Lack of personal jurisdiction is not a proper basis for a demurrer. This must be raised by a motion to quash.

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Discovery Motions

➢ Familiarize yourself with the California Rules of Court,

rule 3.1345.

➢ Clearly state in the Notice of Motion whether you are

seeking initial responses or further responses to a

discovery request.

➢ Be sure to know and comply with the procedural

requirements of the Civil Discovery Act with regard to

motions to compel initial responses to discovery versus

motions to compel further responses to discovery.

➢ Include a separate statement if required to do so by CRC

3.1345(a).

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Discovery Motions

➢ Familiarize yourself with CCP § 2023.040:

▪ “A request for a sanction shall, in the notice of motion,

identify every person, party, and attorney against whom the

sanction is sought, and specify the type of sanction sought.

The notice of motion shall be supported by a memorandum

of points and authorities, and accompanied by a declaration

setting forth facts supporting the amount of any monetary

sanction sought.”

➢ Your accompanying declaration should clearly and

concisely state how many hours were spent and what the

hourly rate is. 25

Discovery Motions

➢ Focus your motion on the discovery dispute, not the

underlying controversy.

➢ Attach copies of the discovery requests served and the

responses received. Your motion will not be addressed on

the merits otherwise.

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Discovery Motions

➢ Attach ALL meet and confer exchanges.

➢ Clearly identify the interrogatories, inspection demands or admissions requests by set and number. (CRC 3.1345(d).)

➢ Where appropriate, include a declaration setting forth your attempts at informal resolution of the issues.

➢ Make an honest and good faith effort at resolution before seeking intervention by the court.

➢ The court reviews the meet and confer declaration carefully. 27

Motion to Withdraw as Counsel

➢ 90% are denied for procedural defects.

➢ There is a mini-celebration in the back hallway when one

is properly presented.

➢ Motion must be utilized [substitution is not enough] if you

are the attorney for “guardians of the estate,

conservators of the estate, personal representatives in

estates, and trustees of trusts under court supervision”

[San Diego Superior Court Local Rules, Rule 4.21.1,] AND

your client would be left self-represented following

withdrawal. 28

Motion to Withdraw as Counsel

➢ Relevant Authority:

▪ California Rules of Court, Rule 3.1362;

▪ CCP § 284;

▪ San Diego Superior Court Local Rules, Rule 4.21.1

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Motion to Withdraw as Counsel

➢ You are required to use the mandatory Judicial Council

forms. Your motion will not be considered if you do not.

They are MC-051, MC-052, and MC-053.

➢ You MUST file and serve the proposed order.

➢ You MUST serve your client and ALL others who have

appeared in the case.

➢ You MUST attest that you verified that your client’s

address is current within the 30 days preceding the filing

of the motion.

➢ You must serve the surety if your client is bonded. (Prob.

Code § 1213(a)(4).) 30

PET PEEVES

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Think of your reader

➢ Untabbed Exhibits.

▪ Each paper exhibit must be separated by a hard 8 ½ x

11 sheet with hard paper or plastic tabs extending

below the bottom of the page, bearing the exhibit

designation. (CRC 3.1110(f)(3)

➢ Over-limit points and authorities. (CRC 3.1113(d).)

▪ 20 pages for an MSJ; 15 pages for everything else.

▪ Replies can be a maximum of 10 pages.

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➢ Evidentiary objections in non-MSJs. We don’t consider

them.

➢ Discovery motions that do not clearly state which

items remain at issue.

➢ Requests for judicial notice that are not made in a

separate document. (3.1113(L).)

➢ Reply papers that simply repeat the initial

memorandum of points and authorities.

➢ Not notifying the court when a motion is going off

calendar (e.g. if the issue has been resolved.) 33

QUESTIONS?

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Nadia J. Keilani

Staff Attorney

San Diego Superior Court

Nadia Keilani received her Bachelor’s degree in Political Science from

UCSD and her JD from USD. Before coming to the court, she worked at

the Office of the Alternate Public Defender in the Juvenile Dependency

Division. During her time with the court she has worked in the criminal,

family, civil and probate divisions. Since 2012 she has worked

exclusively in probate. Currently she is the Staff Attorney to the

County’s three probate judges- Judges Bostwick, Kelety and Longstreth.

In addition, she oversees the annual revisions to the probate local rules

of court. She also volunteers with numerous law and non-law related

organizations.

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