It is my understanding that before I serve a motion to compel answers, I need to call a civil clerk and schedule a hearing date. Then insert this date into the motion. The motion has to be served at least 16 days before this hearing date. Am I correct? Is there anything I am missing?
And the same about requests for admission?
As Mr. Chen pointed out, your motion papers are due 16 court days before your hearing. Court days DO NOT include weekends or court holidays. You must add five calendar days if you are serving your opposition papers by mail. Calendar days include weekends and holidays. If you serve by express messenger, such as Fedex, instead of mail, you must add two calendar days only.
You are correct that you must clear a date first with the clerk. Once you have a date, you insert the date, time and location of the hearing in your notice of motion. You usually contact the clerk in the Department (courtroom) where your motion is to be heard to obtain the hearing date.
The motion process described above is generally the same for all discovery motions, including your motion to compel answers and responses to requests for admissions.
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The answer regarding obtaining a hearing date and the necessity to reserve the hearing date depends upon the specific court in which the case is pending. Some county courts require reserving a date. Other county courts have the judge's local local rules posted on the Internet as to when motions are heard.
Motions must be served and filed 16 COURT days prior to the hearing, not 16 calendar days, with an additional 5 days’ notice given if served by mail within California, an additional 10 days’ notice if served outside of California, an additional 20 days’ notice if served outside the United States, or an additional 2 calendar days’ notice if served by facsimile or express mail. (Code of Civil Procedure, §1005(b).)
The same rules apply for a motion to deem matters (RFAs) admitted.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult with your own attorney.
Mr Chen and Mr. Masso give good advice regarding the distinction between court days and calendar days. Maks sure you give 16 court days' notice, and if you are serving the documents by mail within California add an additional 5 calendar days on top of that. Most courts will require you to call and reserve a hearing date. Some courts will post allowable hearing dates on their website and yet others will allow you to set your own hearing date as long as you comply with the notice requirements under the Code. To be safe, call the court (the department where the motion will be heard) and ask the clerk whether you need to reserve a hearing date.
This response is for information purpose only and does not constitute a legal advice. This response does not create an attorney-client relationship.
Divorce / Separation Lawyer
Regarding your Motion to Compel answers, you need to file a Notice of Motion, Points & Authorities, your declaration and a proposed Order to the Court. If the recipient of your discovery did not provide you any answers whatsoever then you can proceed immediately with your Motion to Compel. It needs to be filed in 45 days of when of the original due date before the receipt of the discovery responses. The potential issue is that if your responding party was deficient in their responses but did not totally ignore them then you have an obligation to meet and confer with opposing counsel. If there is no opposing counsel then the individual in pro per.
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