My usual disclaimer applies. Nothing herein is to be considered a local rule of court, an unwritten rule, or a court policy. What follows are simply the views of one judge, who reserves the right to change his mind.

Judges would much rather decide cases on their merits, rather than dispose of them on technicalities. However, since Judges are bound to follow the law, they must rule against a litigant who has failed to comply with the requirements applicable to the particular motion or opposition thereto presented to the Court. After sitting in a Law and Motion Department for more than four and a half years, I have noted that there are certain rules or statutes that seem to regularly trip up attorneys. This column will catalog these recurring problems and provide suggestions on how to avoid them so cases are decided on their merits and not on procedural matters.

EX PARTE PROCEEDINGS

A party often fails to obtain the relief sought in an ex parte proceeding because his/her/its counsel has failed to read CRC, Rule 379. The rule is quite explicit and clear, but nevertheless papers are presented that demonstrate that the party seeking relief has not bothered to read it. The most common missteps are

(1) failing to submit a proper declaration by a person with first hand knowledge of the facts that completely satisfies the requirements of Rule 379(g);

(2) failing to show that the party has acted diligently (see, e.g., Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257), and

(3) failing to serve the ex parte papers on the opposing party "at the first reasonable opportunity." Rule 379(h).

These errors are easily correctable simply by reading and applying the requirements of the rule.

ATTORNEY WITHDRAWAL MOTIONS

There are a number of recurring errors with respect to attorney withdrawal motions. Surprisingly, one of the most common mistakes is the failure to use the mandatory Judicial Council forms. When the Judicial Council forms are utilized they are often not fully completed, including the proposed order, which must be completed by the attorney and served on the client with the moving papers. CRC, Rule 376(e). The declaration form requires certain information be stated. Rule 376(c).

Another recurring problem is the failure to properly ascertain the client's address, or the failure to properly serve the motion when the client's whereabouts are unknown. Service on a client whose current address cannot be ascertained with due diligence is completed by serving the Clerk of the Court. See CCP § 1011(b) and CRC, Rules 202.5 and 376(d). Note the specific information that Rule 202.5(b) requires to be placed on the back of the envelope. In the Court's view "due diligence" requires at a minimum the checking with the post office for a forwarding address, contacting neighbors and/or relatives, and using internet search engines such as Zabasearch.com.

PROVIDING PROPER NOTICE

The 2005 amendments to CCP § 1005 have caused a number of motions to be dropped because the statutorily required notice was not provided. The statute requires that motions (other than summary judgment motions) must be filed and served at least 16 court days before the date set for hearing. If the motion is served by mail, an additional five calendar days must be added. When computing the 16 court days, one must take care to exclude weekends and court holidays. The statutory language requires that the 16 court days be computed before adding the five calendar days for service by mail. See Barefield v. Washington Mutual Bank (2006) 136 Cal.App. 4th 299, 303. Summary judgment motions still use the calendar day method of computing due dates for the motion, opposition, and reply (75, 14, and 5, respectively). CCP § 437c (a) and (b).

RELYING ON DEFECTIVE DECLARATIONS

Many matters filed in Law and Motion require an accompanying declaration, either as admissible evidence in an evidentiary motion, or showing compliance with applicable rules and statutes in non evidentiary motions. In order for the Court to consider a declaration, it must comply with CCP § 2015.5 and be based on personal knowledge. Witchell v. DeKorne (1986) 179 Cal.App.3d 965.

An improperly prepared jurat to a declaration may lead to an objection being sustained, the declaration not considered, and the motion lost. In Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, the California Supreme Court upheld the striking of a crucial declaration that resulted in summary judgment being imposed against the party who had submitted the declaration. The declaration was signed outside the State of California and did not contain the jurat required by Code of Civil Procedure § 2015.5 ("under the laws of the State of California").

Often counsel will request the court to take judicial notice of a declaration that was filed in another case without realizing that the court can only take judicial notice that the declaration has been filed in that case. The court cannot take judicial notice of the truth of its contents. Bach v. McNelis (1989) 207 Cal.App.3d 852, 865. Inadmissible hearsay does not become admissible just because it is contained in a public record Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879. If the declaration is crucial to the motion, counsel should present it as part of the papers submitted in support of or in opposition to the motion. See also, CRC, Rule 323(c).

FAILING TO PROPERLY AUTHENTICATE EXHIBITS

Counsel must make sure that there is a proper foundation laid for all exhibits submitted with the moving or opposing papers. Such foundational evidence may take the form of a declaration under penalty of perjury by a person who has first hand knowledge and who can identify the exhibit and state that the exhibit is what it purports to be. If an exhibit is not properly authenticated, it is inadmissible and cannot be considered by the court in ruling on the matter before it. If the declarant does not have first hand knowledge that the exhibit is what it purports to be (e.g. a contract entered into between the parties), then the exhibit is not authenticated and cannot be admitted into evidence. For example, absent very unusual circumstances, the attorney will not have personal knowledge of the contract in the above example. At best, he/she has hearsay knowledge (what his/her client told him/her). In the absence of facts set forth in the declaration showing first hand knowledge, an attorney declaration will be insufficient to properly authenticate the document.

FAILING TO COMPLY WITH COURT RULES

There are a number of procedural requirements that, if not satisfied, may cause a motion to be dropped, denied, or continued, or the offending paper not considered. The following is a nonexhaustive list of some of the more common errors encountered:

(1) Failing to file proofs of service at least five days prior to the hearing as required by CRC, Rule 317(c).

(2) Failing to file papers in the Law and Motion Department located at 800 Ninth Street, 3rd floor as required by Local Rule 3.03(A) (Note: Papers filed by mail should be addressed to 720 Ninth Street but must include "Department 53 or 54" in the address.)

(3) Failing to serve opposing and reply papers by means likely to result in delivery in one court day (e.g., personal, overnight delivery, etc. as required by Local Rule 3.03(B). See also CCP § 1005(c).

(4) Failing to highlight the portion of the deposition transcript relied upon. CRC, Rule 316(c).

(5) Failing to include only the necessary pages of the deposition transcript as required by CRC, Rule 316(b).

(6) Failing to include tables for papers longer than 10 pages as required by CRC, Rule 313(d).

(7) Failing to separate and tab exhibits as required by CRC, Rule 311(e).

(8) Failing to set forth the date the case is set for trial on the first page of the document as required by CRC, Rule 311(b).

(9) Failing to provide notice of the tentative ruling system, including the necessity to call the Court and opposing party if oral argument is desired as required by Local Rule 3,04(D).

(10) Failing to obtain court approval when continuing a hearing as required by Local Rule 3.00(I).

(11) Failing to timely request oral argument in compliance with CRC. Rule 324(a)(1) and Local Rule 3.04(B).

(12) Failing to personally serve a non-party when a filing motion to compel with regard to that nonparty. CRC, Rule 337.

COMMON ERRORS IN DISCOVERY MOTIONS

Three errors appear to predominate over others in discovery motions: overbroad discovery demands, the failure to file a Rule 335 statement where required, and the failure to comply with CCP §§ 2031.210 - 2031.240 when responding to a Request for Production.

Often attorneys seeking discovery draft their requests as broad as possible. Overbroad requests usually will be denied. Bear in mind that where privacy or other privileges are applicable, the requests should be narrowly tailored to encompass only the matters at issue. CCP §§ 2019.030(b)(1) and 2017.010. Further, the documents sought must be described with reasonable particularity. "Generalized demands, insupportable by evidence showing at least the potential evidentiary value of the information sought, are not permitted." Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216, 218.

In Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, the Court of Appeal said that even if discovery is likened to a fishing expedition, "as with a fishing license, the rules of discovery do not allow unrestricted access to all species of information." 55 Cal.App.4th at 1387.

The failure to file a proper CRC, Rule 335 statement is usually fatal to a motion to compel further responses or a motion to impose evidentiary or issue sanctions. The purpose of the rule is to permit the judge and opposing party to examine one document (the Rule 335 statement) to determine exactly what is at issue. The law and motion judges routinely deny motions to compel or motions to impose issue or evidentiary sanctions that are not accompanied by a Rule 335 statement that is in full compliance with the rule.

It appears that many attorneys fail to read the statutory requirements applicable to responses to demands for production of documents. CCP § 2031.210 sets forth what the response must state. There are three choices: the party will comply with the request, the party lacks the ability to comply for a stated reason (e.g. a statement under oath that a diligent search has been made covering all persons and entities who would be likely to possess the documents and no responsive documents have been found), or an objection to all or part of the request. The usual response that simply says that the party will produce unprivileged documents in his/her possession does not comply with the statute. A diligent search must be undertaken. CCP § 2031.230. If an objection is made it must specify the document( s) to which the objection applies. CCP § 2031.240.

Hopefully this column has served as a reminder to carefully review law and motion papers to make sure that these common errors are not included so that a ruling on the merits is obtained rather than having the matter disposed on procedural grounds.

September/October 2006