Legal Question in Business Law in California

Re: Service of process - how long do I have ?

Your opposition is due 9 court days prior to the hearing. If there are holidays, those do not count as court days, neither do weekends. If you serve by mail you must add an additional 5 days to the 9 days.

You must serve all exhibits with your opposition. The exhibits must be "authenticated" in your declaration.

Most courts issue a tentative ruling the day before the hearing. If you don't check the tentative and call for oral arguement if the ruling is against you, the matter will be removed from the calendar and there will be no hearing.

Re: Service of process - how long do I have ?

see CCP 1005

AND must include Exhibits that send to court.

(b) Unless otherwise ordered or specifically provided by law, all

moving and supporting papers shall be served and filed at least 16

court days before the hearing. The moving and supporting papers

served shall be a copy of the papers filed or to be filed with the

court. However, if the notice is served by mail, the required 16-day

period of notice before the hearing shall be increased by five

calendar days if the place of mailing and the place of address are

within the State of California, 10 calendar days if either the place

of mailing or the place of address is outside the State of California

but within the United States, and 20 calendar days if either the

place of mailing or the place of address is outside the United

States, and if the notice is served by facsimile transmission,

express mail, or another method of delivery providing for overnight

delivery, the required 16-day period of notice before the hearing

shall be increased by two calendar days. Section 1013, which extends

the time within which a right may be exercised or an act may be done,

does not apply to a notice of motion, papers opposing a motion, or

reply papers governed by this section. All papers opposing a motion

so noticed shall be filed with the court and a copy served on each

party at least nine court days, and all reply papers at least five

court days before the hearing.

go to: http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=ccp&codebody=&hits=20

Re: Service of process - how long do I have ?

In California under Code of Civil Procedure Section 1005(b) & (c): "All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days� before the hearing. (c) Notwithstanding any other provision of this section, all papers opposing a motion shall be served by personal delivery, facsimile transmission, express mail, or other means reasonably calculated to ensure delivery to the other party not later than the close of the next business day after the time the opposing papers are filed."

This should answer your general question. Count back nine court days from the date set for the hearing to determine the date upon which your opposition must be filed. Make sure that there are not any Court holidays during this period by checking the website for your county court. Any Court holidays will not be counted in the nine Court days prior to the hearing. It is better to file your opposition papers directly in the department your matter will be heard (i.e., walk them in to the department), and bring an extra copy of the face page (first page) of your opposition so that the clerk can stamp it for you with the date of filing, in case you have to prove to the court that your opposition was filed on time.

You should not simply mail the opposition to the other side unless you mail it early as well. Fax the opposition. Remember, (as it states in sub-section (c) of the statute I quoted above) you have only one extra day after filing the opposition to have it reach the other party.

Papers that are served on the opposing side by you should ALWAYS have what is known as a "proof of service." It is stapled as the last page of any document that you serve on the other side; it is the sworn declaration of someone over 18 who is not a party to the action; it describes, under penalty of perjury, the exact date and manner of the method used to serve the papers; and it is the way that a party proves to the court if necessary that they did in fact serve the papers on all other parties in the action. If you need an example of a "proof of service," copy the general language from the proof of service for the motion that was served on you (the last page of the motion), making whatever changes are necessary. Have someone over 18 (anyone) fax or deliver the papers to the other side and sign the proof of service.

You do need to include in your opposition papers any exhibits that you will use to support the facts or argument of your opposition. If you want the judge to accept any exhibits you attach, make sure that those exhibits are exhibits to your declaration attesting that they are true and correct copies of whatever it is they purport to be. Look at the declaration that is attached to the moving papers and use the same language that they use when authenticating each of the exhibits attached to the declaration.

Tom Rotert

Laguna Beach, CA