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Plaintiff opposed my motion in a civil case , but has served me with less than 9 court days before motion hearing.

Sacramento, CA |

Do I have any recourse in invalidating the Plaintiff's opposition to my motion on the grounds of him violating the rules of the Court where he hasn't allowed me enough court days (the local rules say to allow for at least 9 court days when serving opposition to a motion) to prepare a reply? Do I essentially file a reply and mention this very fact in the reply along with other statements objecting to his opposition, or can I object in a more expedient manner? Also, I have never filed a reply to an opposition to a motion, and am wondering if I have to pay a fee to file it. I paid $60 for filing the actual motion, but have not seen any fees posted for filing a reply. This Court is in California. Thank you very much for any information you may provide.

This is a Motion to Strike Interest and Attorney Fees in a consumer debt lawsuit. The motion to strike was filed on the grounds that the Plaintiff's complaint asked for Attorney fees and interest, but the Complaint itself had no supporting evidence that would show that Plaintiff was entitled to attorney fees and interest.

Attorney Answers 5


  1. Best answer

    In addition to Mr. Chen's fine comments, I feel I should point out that you will have to state facts which show you were prejudiced by the late service of the opposition: merely alleging prejudice will not suffice.

    The best practice, frankly, if you are able to file a timely reply is simply to do it. Court's prefer to decide motions on the merits after full briefing. If the motion was also filed late the court may simply disregard it, particularly if it was late by more than 1 or 2 days.

    I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for general information only. They are not legal advice. Answers must not be relied upon. Legal advice must be based on the interplay between specific exact facts and the law. This forum does not allow for the discussion of that interplay. My answer to any specific question would likely be different if that interplay were explored during an attorney-client relationship. I provide legal advice during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us. The communications on this website are not privileged or confidential and I assume no duty to anyone by my participation on Avvo or because I have answered or commented on a question. All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice in answer to any question, if you are an interested party you should promptly and personally consult with an attorney for legal advice. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference


  2. You don't mention what type of motion this is.

    You can file a Reply to Opposition stating that you are prejudiced by the fact that the Opposition is untimely.

    There is no additional filing fee for filing a Reply.

    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 Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.


  3. Mr. Chen and Mr. Daymude have, collectively, given you the good advice you need.


  4. The opposition must be filed and served 9 court days before. If mailed, it should be in a manner that would assure delivery the next day. Thus if you recd the OPP 8 days before, it is timely. You can object to it in your Reply, but I think it would be a mistake to rely upon the hope that the court wont consider the OPP. Obviously if they didnt serve it until 1-2 days before, that is likely prejudicial, and the court would either ignore the OPP or continue the hearing to give you more time to file a Reply. The court has the power to ignore late papers, or to consider them. In my experience, the judge will usually consider them. No fee for filing the reply. Your reply shouldnt re hash your motion, but should address anything in the Opp that you feel is wrong, misstated, or distinguishable.


  5. I agree with both of my colleagues. Mention in your reply that opposition was filed late, but also attack some of the substantive points made in the opp, if there were any. Then, argue it in court in front of the Judge and see what happens. Some Judges are more strict about filing deadlines than others, so kind of depends on the Judge.

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