Improve your law and motion skills

The 3 Rules of 3 for writing your motion

2025 November

While a common perception of litigation is that it is in pursuit of a judgment, a large percentage of litigation is actually spent pursuing court orders. Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated by the Code of Civil Procedure as an order. An application for an order is a motion. (Code Civ. Proc., § 1003; California Rule of Court, rule 3.110.)

We write today to offer some tips on how to improve your skills in making motions. Some of these tips will be general tips applicable to any motion. Others will be more specific.

General tips

When writing motions, keep in mind 3 Rules of 3:

1) There are at least three places to look for guidance on how to bring your motion: (1) The Code of Civil Procedure, (2) The California Rules of Court (see, in particular, rules 3.110-3.1362), and (3), the local rules of your court. Of course, in addition, there will be relevant case law and, possibly, a local, local rule issued by the department hearing the motion. Although courts have no authority to issue local rules which conflict with any statute or are inconsistent with law, courts do have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967), so be sure to check for any courtroom procedures which might affect your motion.

2) A motion typically contains three parts: (1) a notice (2) a memorandum of points and authorities and, generally, (3) a declaration providing evidentiary support for the requested order. (California Rule of Court, rule 3.1112.) Our preference is that these be joined into one document (e.g., Notice of Motion for [ ]; Memorandum of Points & Authorities; Declaration of [ ]). The document should be electronically bookmarked. (California Rule of Court 3.1110(f)(4); Los Angeles Superior Court First Amended General Order ¶ 6.)

3) The notice of the motion contains three parts: (1) a statement of the date and time of the hearing; (2) the nature of and basis for the order sought, from whom, and the relief requested; and (3) the materials upon which the motion will be based.

With the 3 Rules of 3 in mind, remember that trial courts are extremely busy. So, when drafting a motion, tell the court as early in your papers as possible what order you seek, against whom, and why you are entitled to the order. In other words, begin arguing your motion in your notice. That’s not to say that your notice should be eight pages long (not appreciated); you should be able to explain why you are entitled to the order and the relief requested in a sentence or two. Your memorandum of points and authorities will explain the details. But help the busy trial court out by telling it up front what you need and why.

Here are some applications of this general tip to specific motions and some common mistakes we see:

Ex parte applications

The advice about telling the court what relief you need, why you need it, and why you are entitled to it at the beginning of your papers is especially important in ex parte applications. The Court has little time to review your application, and there is no point in burying your request on page 17 of the application.

The procedural requirements for ex parte applications are prescribed by California Rules of Court, rules 3.1200, et seq. Essentially, the application must (1) contain a statement of the relief requested, (2) a declaration demonstrating irreparable harm, immediate danger, or other statutory basis for relief on an ex parte basis, (3) a declaration evidencing proper notice of the application, (4) points and authorities, and (5) a proposed order. (Cal. Rules of Court, rules 3.1202, 3.1204.) Notice of the application must be given to all parties by 10:00 a.m. the day before the hearing on same. (Cal. Rules of Court, rule 3.1203(a).)

A party applying for an order on an ex parte basis must make an affirmative factual showing of irreparable harm, immediate danger, or any other statutory basis for granting relief on an ex parte basis. (California Rules of Court, rule 3.1202(c); see Webb v. Webb (2017) 12 Cal.App.5th 876, 879.) A trial court should deny an ex parte application absent the requisite showing. (See Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 551, fn. 30, 523 [counsel obtained an ex parte order “without apparent justification” where the application “set forth no basis for a finding of good cause to dispense with proceeding by noticed motion”]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 9:346 p. 9(l)-156 [“don’t ask a judge for an ex parte order unless it is clear that such relief is proper”].)

Only limited forms of relief are available ex parte. Generally, ex parte relief may be allowed only where the motion has no effect on the opposing party’s rights or liability. “The general rule is that notice of motion must be given whenever the order sought may affect the rights of an adverse party.” (Caledonian Ins. Co. v. Superior Court of Alameda County (1956) 140 Cal.App.2d 458, 461, quoting McDonald v. Severy, 6 Cal.2d 629, 631; cf. 2 Witkin, California Procedure, pp. 1641-1642.)

Statutes affording relief upon “notice” or a “noticed motion” require such, and relief may not be granted on an ex parte application. (See e.g., St. Paul Fire & Marine Ins. Co. v. Superior Court (1984) 156 Cal.App.3d 82, 86 [“we interpret use of the term ‘motion’ rather than ‘ex parte application’ as imposing the notice and hearing requirements generally applicable to motions”].) Further support for this proposition may be found in Code of Civil Procedure section 2030.260, for example [distinguishing between requests for relief requiring a motion – shortening time to respond to interrogatories – and that available without notice – limiting the parties upon whom service of the responses must be served].

Code of Civil Procedure section 1005(a) prescribes that these motions require statutory notice:

(1) Notice of Application and Hearing for Writ of Attachment under Section 484.040.

(2) Notice of Application and Hearing for Claim and Delivery under Section 512.030.

(3) Notice of Hearing for Claim of Exemption under Section 706.105.

(4) Motion to Quash Summons pursuant to Code of Civ. Proc. Section 418.10(b).

(5) Motion for Determination of Good Faith Settlement pursuant to Code of Civ. Proc. Section 877.6.

(6) Hearing for Discovery of Peace Officer Personnel Records in a civil action pursuant to Evidence Code Section 1043.

(7) Notice of Hearing of Third-Party Claim pursuant to Section 720.320.

(8) Motion for an Order to Attend Deposition more than 150 miles from deponent’s residence pursuant to Code of Civ. Proc. Section 2025.260.

(9) Notice of Hearing of Application for Relief pursuant to Government Code Section 946.6.

(10) Motion to Set Aside Default or Default Judgment and for Leave to Defend Actions pursuant to Code of Civ. Proc. Section 473.5.

(11) Motion to Expunge Notice of Pendency of Action pursuant to Section 405.30.

(12) Motion to Set Aside Default and for Leave to Amend pursuant to Code of Civ. Proc. Section 585.5.

(13) Motions to amend pleadings (Code of Civ. Proc. § 473(a)(1).)

(14) Any other proceeding under this code in which notice is required, and no other time or method is prescribed by law or by court or judge.

In addition, regular notice requirements apply to motions:

to extend the time to plead after it has already expired;

to shorten or extend the time for responding to discovery requests (e.g., interrogatories, RFAs, and demands for documents) (see Code Civ. Proc., §§ 2030.260(a), 2031.260, 2033.250);

to permit discovery after the discovery “cut-off” date (Code Civ. Proc., § 2024.050);

to appear pro hac vice (Cal. Rules of Court, rule 9.40); and

for a protective order to terminate deposition (St. Paul Fire & Marine Ins. Co. v. Superior Court (1984) 156 Cal.App.3d 82, 86.)

As to these, while the court may not grant the relief on an ex parte basis, the court does have the authority to shorten the amount of notice required for hearing the motion.

On the other hand, ex parte orders may be obtained:

to shorten or extend time to plead or for service of notice;

to appoint a guardian ad litem;

to amend a pleading by substituting the name of a fictitiously-named party;

to amend a pleading by adding or deleting parties, or correcting a mistake in a party’s name or in any other respect;

to authorize service by publication or substitute service on a corporation;

to exceed page limits for memoranda of law;

to authorize discovery by plaintiff during the “hold” on discovery at the outset of the case;

to control deposition scheduling (most other orders extending or shortening time for discovery require a noticed motion);

to dismiss for failure to amend complaint after demurrer sustained (Code Civ. Proc., § 581(f)(2); Cal. Rules of Court, rule 3.1320(h).)

to continue trial (Cal. Rules of Court, rule 3.1332(b) states: “A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for continuance by noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations.” (See Motion to Continue Trial, below, for a discussion of the factors to consider in ruling on the application.);

to substitute parties upon death or to transfer the interest of one of the original parties. (Code Civ. Proc., § 377.33).

to intervene (Code of Civ. Proc. § 387(c).)

Bottom line, before making an ex parte application, make sure you are entitled to the relief you seek on an ex parte basis and that you make the requisite showing establishing that entitlement via an admissible declaration.

Motions to compel

Motions to compel should be very, very basic. The notice should advise the court that on [date] you served [discovery], and that responses were due [date], and that, to date, no responses have been received. Although there is no requirement to meet and confer concerning the missing answers (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906), the court will appreciate efforts to resolve the issue short of a motion to compel. If you seek sanctions, the notice should identify the nature of sanctions sought (i.e., monetary, issue preclusion, terminating), and against whom (i.e., party, counsel, both). We suggest you also identify the code section under which you seek the sanctions. The memorandum of points and authorities should simply recite the facts and the code section under which you move (and under which you seek sanctions). The supporting declaration should be similarly brief, again, “on [date] I served [discovery]. Responses were due [date]. To date, no responses have been received. I declare….” Ideally, this can all be accomplished in fewer than five pages.

Because the motion is so basic, there are generally more slots in the Court’s Reservation System (CRS) than there are for motions to compel further responses to discovery (which require more time to review). Do not be tempted to describe a motion to compel further responses as a simple motion to compel as a means of getting an earlier hearing date on a motion to compel further. This may strike the court as an effort to cheat the CRS system, which is designed to limit the court’s daily workflow to a manageable flow, and could result in the motion to compel further being continued to a date even beyond what you could have honestly obtained.

Motions for leave to amend

An easily avoided mistake commonly made in motions for leave to amend is (1) not attaching a copy of the proposed amended pleading and (2) identifying what allegations in the previous pleading the party wishes to either strike or add. (California Rule of Court, rule 3.1324.) In addition, the motion must be supported by a declaration explaining the effect of the amendment, why it is necessary and proper, when you discovered the need to make the amendment, and why the motion was not made sooner. (Ibid.)

Motions to set aside a judgment

A motion to set aside a judgment or dismissal based upon an attorney’s mistake must be accompanied by a copy of the answer or other pleading the party wishes the court to file. (Code Civ. Proc., § 473.) If there’s no such answer or pleading attached to the moving papers, it’s a quick denial.

Motions to be relieved as counsel

In keeping with the Rules of 3 above, an easily avoided mistake is failing to use the three mandatory forms: (1) the Notice of Motion and Motion to be Relieved as Counsel (MC-51); (2) the Declaration in Support of Attorney’s Motion to Be Relieved as Counsel – Civil (MC-52); and (3) the Order Granting Attorney’s Motion to Be Relieved as Counsel – Civil (MC-53). We often see only one or two of these (often the Order is missing).

Motions for summary judgment

A motion for summary judgment must contain a separate statement (Code Civ. Proc., § 437c, subd. (b)(1)), which must be in the format prescribed by California Rule of Court, rule 3.3150. The separate Statement must be limited to only material facts and not any facts that are not pertinent to the disposition of the motion. “Material facts” are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion. (California Rule of Court, rule 3.1350(a)(2).) (See, Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 875.)

Both the moving party and the party opposing a motion for summary judgment have a duty to comply with the law regarding separate statements. The opposing party’s responses to the separate statement must be in good faith, responsive, and material. “Responses should directly address the fact stated, and if that fact is not in dispute, the opposing party must so admit. It is completely unhelpful to evade the stated fact in an attempt to create a dispute where none exists.” (Ibid.)

As explained by the Beltran Court, “A trial may deny a motion for summary judgment when an inappropriate separate statement includes an overly long document that includes multiple nonmaterial facts in violation of the Rules of Court. Courts should also not hesitate to disregard attempts to game the system by the opposing party claiming facts are ‘disputed’ when the uncontroverted evidence clearly shows otherwise.” (Id., at 876.)

The issues in the notice of motion and the separate statement need to match verbatim.

Each cause of action/affirmative defense/issue of duty/claim of damages must be separately addressed in the separate statement (they cannot be combined).

Do not incorporate facts by reference.

Evidentiary objections must be served and filed separately from the other papers in support of or in opposition to the motion. (California Rules of Court, rule 3.1354(b).) Evidentiary objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. (Ibid.) Each written objection must be numbered consecutively and must:

(1) Identify the name of the document in which the specific material objected to is located;

(2) State the exhibit, title, page, and line number of the material objected to;

(3) Quote or set forth the objectionable statement or material; and

(4) State the grounds for each objection to that statement or material.

(Ibid.)

Evidentiary objections should be used judiciously; there is no reason for there to be unnecessary hearsay objections, or hundreds of objections to every piece of the opposing party’s evidence. (See, Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 257 [“Can this be serious? Can counsel see themselves rising at trial with those objections while plaintiff is testifying before a jury?”].)

Appearing at the hearing of a motion

First, if your motion is important, you will be more persuasive in person than appearing remotely. If nothing else, it tells the court you view the matter as important enough to appear in person. Next, if you cannot be there in person, turn your video camera on so the court can see you. As an aside, if you do turn your camera on, make sure you look the part of invested counsel. What we do in the courtroom is extremely important. Let your appearance communicate that you appreciate the importance of the event. Finally, mute yourself when you enter a hearing. Become familiar with applicable remote hearing technology (if necessary, consult the court’s website for helpful information) and your own device settings before logging in.

Conclusion

Hopefully, these basic tips will help you become better at what you do.