Spring 2005 • Issue 17, page 5

Is it true that the notice one has to give to file a motion in Superior Court has changed, as has the time for opposing a motion and filing a reply?

By Davidson, Peter*

Q: I am not a lawyer but you heard that the notice one has to give to file a motion in Superior Court has changed, as has the time for opposing a motion and filing a reply.  Is this true and why was the notice period changed? 
 
A: Yes, unfortunately, what your heard is true.  Effective January 1, 2005, California Code of Civil Procedure §1005 was amended to provide that a moving party must file and serve his motion at least 16 court days, instead of 21 calendar days, prior to the hearing on the motion.  Therefore, in calendaring any motion you must determine what is a court date.  Court days do not include weekends or days when the court is closed, for example national or state holidays. 

To make things more difficult, the legislature did not change the number of days that must be added if your motion is served by mail.  That remains 5 calendar days.  Therefore, if you file a motion it must be filed and served at least 16 court days prior to the hearing, and if your motion is served by mail, 5 calendar days must be added to that.  Opposing papers are now due 9 court days, instead of 10 calendar days, prior to the hearing, and reply papers are now due at least 5 court days instead 5 calendar days before the hearing. 

A recent article in the Daily Journal pointed out that you can run into difficulties in calendaring your motion depending on whether you first count the 16 court days or first count the five calendar days and whether you count backwards from the hearing date or forward from the date of service.  If you run a little test you will see that you end with different hearing dates.  While there is no case law directly on point, since the statue was just amended, prior law indicates that the proper method of determining the date for calendaring a motion is to count backwards from the hearing date. 

Since C.C.P. §1013(a) states a period of notice “shall be extended five calendar days, upon service by mail” one should count back from the hearing date 16 court days and then 5 calendar days, if service was by mail. 

As to why the legislature amended the statute, the legislative history indicates the legislature was concerned that C.C.P. §1005 was silent about the correct method for calculating the deadline for service and filing of motion papers when the deadline falls on a Saturday, Sunday, or Holiday and was concerned that the existing statute permitted parties to manipulate the length of time for service by filing motions on certain days of the week.  It hoped the new statute would clarify the law, reduce gamesmanship, and eliminate ambiguity about the proper deadlines for filing motions by using court days instead of calendar days. 

Of course, as indicated, its goal of eliminating ambiguity and creating clarity missed the mark.  Indeed, this is the 10th time since 1980 that the legislature has amended C.C.P. 1005 in hopes of eliminating gamesmanship and creating clarity.  Given the results of the latest amendment it is probably not the last time this section will be amended. 

*Peter A. Davidson, an attorney with Rein Evans & Sestanovich LLP located in Los Angeles, is a receiver and an attorney who specializes in representing receivers in state and federal court.