What Is A Motion, and How Many Different Kinds of Motions Are There?

What Is A Motion, and How Many Different Kinds of Motions Are There?

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A motion requests that the court do something with respect to the case. Outside of discovery, filing and opposing motions probably uses the most amount of time in litigation. In theory, you could file a motion asking the court to do anything, but California statutes authorize certain specific motions. Below I list some of the most common motions, and the reasons you would file them.

Motion to Quash

You file this motion to contest service of summons, or to contest the issuance of a subpoena. It’s tricky to serve summons correctly if you don’t have experience.  In most cases, you have to personally serve it, although you can serve out of state defendants by mail.  If you really can’t find the person, you can ask for permission to serve using a notification in the newspaper.  I would not recommend this route.  Just find them.

I worked on a case recently where a registered process server lied about having personally served hundreds of defendants. This guy risked his license and career! Not only could he have lost his license, he could have faced charges of perjury. He would find names of co-residents by looking at their mail, then claim to have left it with one of them. Or he would just claim he had left the papers with the actual defendant when he hadn’t. It came to light when people were able to prove they weren’t there when he said they were. One woman even showed a passport stamp proving she was in India at the time he allegedly served her.  Others could show they had long since moved from the address where he claimed to serve them.  The court was extremely displeased, and quashed service on many of the defendants.

Motion to Strike

You can use this motion in a number of contexts. The main idea is that you want to remove something from the official court record of the case. Most people have heard the phrase on tv in cross-examination scenes. An attorney will ask a question, get an answer that is nonresponsive, then ask the court to “strike” the testimony. If the testimony is improper, the court will “sustain” the motion. Once the judge orders the offending testimony stricken, the court reporter deletes the stricken testimony from her notes. From that point on, the official trial transcript omits the offending testimony.

Motions to strike can also be submitted in written form, in an attempt to remove “irrelevant, false or improper matter inserted in any pleading” or contest specific claims. CCP § 436. You can also move to strike where a pleading is “not drawn or filed in conformity with” California law, court rules, or an order of the court. Id. A motion to strike has to specifically identify what language it is seeking to remove and has to justify it. The standard is a very high one, as plaintiffs mostly have the right to allege whatever they want.

Special Motion to Strike (Anti-SLAPP)

These motions are really cool. The legislature noticed that some lawsuits were being used by big companies to punish and intimidate individuals for exercising their free speech, and passed a law against “Anti-Strategic Lawsuit[s] Against Public Participation.” This strange-sounding name for a lawsuit is abbreviated “SLAPP”. It just means the plaintiff has sued a defendant for exercising his or her constitutional rights. The classic example is a business owner suing a Yelp reviewer for an ordinary bad review, calling it “defamation.” Most SLAPP plaintiffs are not trying to actually win. They just want to overwhelm and intimidate the defendant with the threat of high legal defense fees.

If you are the victim of a SLAPP suit, you can file an anti-SLAPP motion, also called a special motion to strike, pointing out that the claims arise from your exercise of protected constitutional activity, like free speech. If the court agrees with you, not only is the lawsuit dismissed right away without the need for trial, but you get all of your attorney’s fees in filing the anti-SLAPP motion!  There is now also something called a SLAPPback action, to counter abuse of the anti-SLAPP. For more information on anti-SLAPPs, visit the California Anti-SLAPP Project.  They are the best in the state at all things anti-SLAPP.

Motion to Compel Arbitration

Historically, arbitration was cheaper and faster than litigation. So people began agreeing at the outset of relationships that if they had a dispute, they’d use arbitration.  Arbitration clauses now appear in many contracts.  You would file this motion if you had a contract with an arbitration clause, and the other party sued you anyway.  Typically, the motion just asserts the existence of the arbitration clause and attaches a copy of the contract. It should include a declaration of a party to the contract declaring the copy genuine.  You might also cite boilerplate caselaw about why the court should compel arbitration. To oppose, you would have to invalidate the contract, or challenge the phrasing of the arbitration clause specifically.

I once successfully contested a motion to compel arbitration in a lawsuit between an individual and her former attorney. Although the retainer agreement contained a valid arbitration clause, we showed she had been under extreme time pressure to sign.  The attorney told her she could not read the contract in detail because he had to leave to pick up her file and begin working on her case. He also told her that the retainer was standard and that any attorney would require the same terms of her. We argued that she reasonably relied on his representation that the terms were standard and non-negotiable anyway. The case didn’t go to arbitration.

Motion to Compel (Further) Discovery Responses

This category covers a number of different types of motions. Once you serve discovery, the responding party has thirty days to provide responses. If they do not provide responses, you can file a “motion to compel discovery responses” immediately.  You don’t have to do this by any specific time.

But if they provide deficient responses, the propounding party has to “meet and confer” with the responding party. If after meeting and conferring, the parties cannot agree, then the propounding party may move to compel “further responses.” You have to file this motion within 45 days of service of the response. The parties can and often do mutually agree to extend this deadline.  Why?  They may need more time to “meet and confer,” or the responding party may need time to correct their deficient responses.

If you file these motions, you have to file a separate motion for each type of discovery that the responding party failed to provide adequate responses to. So for example, if the responding party failed to respond to both a set of Requests for Admission AND a set of Requests for Production, you would have to file two motions: Motion to Compel Responses to Requests for Admission and Motion to Compel Responses to Requests for Production.

Demurrer/Motion to Dismiss

In California, a demurrer is similar to a federal motion to dismiss. Basically, you file it to challenge the legal sufficiency of the other side’s allegations against you in their complaint. You can also demur to an answer, although most people (including judges) scoff at this practice. The key here is that you cannot introduce evidence. Demurrers stick to “the four corners of the complaint” and take all allegations as if they are true. Even if the complaint contains easily disproved lies, the demurrer is not the appropriate vehicle to point that out. (That’s what trials are for.)

If a complaint lies about a fact which may be subject to judicial notice, however, that is an exception. You can ask the court to take judicial notice of easily checked, publicly known facts.  For example, April 30, 2017 was a Sunday.  Let’s say a complaint claims the plaintiff bought stamps at the post office on that day.  You could ask the court to judicially notice the falsity of that statement.

I have filed demurrers in my time, but rarely. Courts rarely grant them, and the plaintiff usually gets to fix any deficiencies anyway. Still, there are sometimes strategic reasons to file these.

Motion for Summary Judgment/Summary Adjudication

This is a motion where you can present evidence in your favor, or point out the lack of evidence against you. You are asking the court to enter judgment without a trial, so you have to submit strong  evidence in support. Many motions for summary judgment include dozens of exhibits on which the court can rely in determining that trial is not needed. Much of the time, the defense files the MSJ. This is because the court cannot enter judgment for a plaintiff if the amount of damages is uncertain or subject to dispute. Only a jury can resolve those questions.

In California state court, an MSJ/MSA must usually dispose at least of an entire claim.  The court cannot decide an issue or a question of fact, like whether a contract was validly signed.  There are some specific exceptions.  An MSA can also try to attack a specific defense to a claim, or the issue of insurance liability.

A motion for summary adjudication (MSA) only tries to resolve one claim in the case, or a specific permissible issue.  A motion for summary judgment (MSJ) seeks to resolve all claims in the case.

Motion in Limine

You file motions in limine a few days or weeks before trial, to ask the court to limit or exclude certain types of evidence from the factfinder (whether jury or judge). For example, if the plaintiff has a checkered past, he might try to prevent the defense from mentioning prior lawsuits or convictions. Sometimes parties try to exclude their own offensive comments or conduct that are so inflammatory that they are more harmful than helpful.

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