The Importance Of Being Timely, Or Even Early
By Judge Loren E. McMaster

This is the first installment in what is intended to be a regular contribution to the Sacramento Lawyer discussing Civil Law and Motion matters. My purpose is to offer a judicial perspective to issues that often arise. Whatever appears in this column should not be attributed to any other judge nor to the Sacramento Superior Court. Nothing that I say should be construed as being a local unpublished rule, only one judge's views. I invite comments and suggestions, as long as they are generic and do not pertain to pending matters.

The lawyers who appear before me are usually well-prepared and properly represent their clients. Nothing I say should be construed as a criticism of the lawyering in Law and Motion. I seek only to offer suggestions on how one may be even more effective.

This first column deals with the importance of the timely filing of reply memoranda and taking court holidays into account when determining the applicable time periods.

Statutes and Rules of Court provide that reply memoranda are to be filed no later than five days before the date scheduled for hearing. There is no rule that says that such a document may not be filed earlier. Some attorneys automatically file reply papers on the last possible day, presumably to give their opponent as little time as possible to consider the points made. What these attorneys overlook is that they limit the amount of time that the judge has to consider the document.

While reply papers may be timely with regard to the applicable statute or court rule, they are nevertheless "late" when they have a negative impact on the court's ability to manage its workload. The Code of Civil Procedure and the Rules of Court give the moving party an "advantage" by permitting it to file both opening and reply memoranda while the opposing party is limited to one document. Many forfeit this "edge," small as it may be, by not providing the court with the reply as soon as possible.

In order to avoid becoming overwhelmed by the volume of work, I and my research attorneys make every effort to keep at least two court days ahead of the calendar. For example, on a Friday, the court will be working on the calendars for the following Tuesday and Wednesday. The tentative rulings for Monday cases are usually completed by the end of the day on the preceding Thursday. All work on those rulings must be completed no later than Friday morning in order to be posted to the Court's website by 2:00 p.m. Friday afternoon.

Often the first paper the court reviews is the moving party's reply memorandum. A well-written reply will reveal the issues that are truly in dispute. The court can then read the opening and opposing memoranda with the "real" controversy in mind. If the reply is not in the file when it is first picked up, obviously it cannot be read until later. That means that the tentative ruling may be prepared without the benefit of the court having read it. If the reply does come in before the ruling must be posted, it will be reviewed to determine whether or not the ruling must be changed because of any matter raised in that memorandum. Occasionally the court will continue the matter on its own motion rather be rushed into posting a decision without having had the opportunity to fully consider all the memoranda that have been filed. However, continuances are not desirable, since they only end up further impacting an already crowded calendar for some future date. Also, the parties are denied a resolution of the matter on the date it was expected.

When holidays are involved, a reply is often not in the file even two or three court days prior to the hearing. It is easy for attorneys to ignore the time frame that the court has to consider the papers and post a tentative ruling. The tentative ruling must be completed by noon the court day prior to the scheduled hearing in order to be posted on the Court's website. What usually happens is that the reply comes in late in the afternoon the day before the tentative ruling must be posted, when it is often too late to be given the consideration it may deserve.

Recent holidays have provided some real life examples of this problem. If a motion for summary judgment is set on a Tuesday, and Monday is a court holiday, the tentative ruling must be posted by 2:00 p.m. on Friday. Notwithstanding this, the moving party will file a reply late on Thursday afternoon. Since Department 53 will often have ex parte matters on the next morning, and since Department 54 will be conducting oral argument at that time, the court may not have sufficient time to carefully consider it before having to post the ruling. By Friday morning, the court has already moved on to the Wednesday calendar, which, in the case of a holiday weekend, is only two court days away.

There are three possible solutions to this problem. The most obvious one is for attorneys to file the reply as soon as possible, and a day early when a holiday is involved. Since the attorney's workload and late service of the opposition may make early filing difficult at best, a second alternative would be to make sure not to set any summary judgment motion (or other lengthy and complicated matter such as a SLAPP motion to dismiss) on a day following a court holiday.

A third way to deal with the problem would be to seek to amend the rules. Code of Civil Procedure section 437c could be amended to require the opposition and reply to be filed 21 days and 7 calendar days, respectively, before the hearing. Since the notice period is now 75 calendar days, such a change should not greatly inconvenience the parties. While such legislation would not affect other motions, summary judgment motions, because of their length and complexity, pose the biggest problems for the court.

In the meantime, if you are the moving party, make every effort you can to get your reply memorandum on file as soon as possible, especially if a court holiday is included in the five days. Surely you want your words of wisdom to be in the file when the court picks it up to begin the decision-making process.