In addition, is there any statues that govern defective proof of services for declarations in a regular general civil matter? Is a proof of service defective if numerous, about eight, declarations, were handed to you by the plaintiff's attorney on the day of the hearing in civil court? This was something that has happened to me in the past (in 2008).
It is my understanding that written declarations of witnesses in support of a party's case (whether defendant or plaintiff) is governed by California Code of Civil Procedures 1013 or 1013 (a). Normally, I use the POS-030 - California Judicial Council Form - which supports service of papers by mail. I cannot seem to find any subsections under California Code of Procedures 1013 that governs statue of limitations on written declarations written by witnesses. I have always assumed that defective proof of services on anything (such as a demurrer, motion to strike, some other type of notice of motion, or any type of legal document) lacked a courts jurisdiction to act; however, I am unsure about this. If there is no prescribed statue or fixed statue on this, I do plan to talk with my local assemblymen to get them to create better laws or to get the Judicial Branch to do that.
Generally speaking, the declarations in support of (or in opposition to) a motion is due at the same time the motion or opposition or reply is due. Thus, Code of Civil Procedure sections 1005 and 1013 control.
Normally, the issue is not the defective proof of service but rather failing to serve a document with the required number of days under CCP 1005 and/or 1013. However, it is up to the opposing party to make a stink about it at the time; otherwise, the court can still consider late filed papers.
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.
Employment / Labor Attorney
Without context, it is impossible to answer your question. It would really depend on the hearing involved. I could unequivocally say declarations served on the day of a Motion for Summary Judgment should be rejected on due process grounds. It really depends on what the declarations are being presented for.
Good luck to you.
This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.
Both counsel have provided fairly complete answers. I would like to add that many courts will not have the time or desire to read declarations filed late. The Court is not deprived of jurisdiction of late filed or late served docs. Many docs are served late and it is really up to the aggrieved party to bring it to the Court's attention and show why the late service prejudiced their side. Courts are all over the board on how they handle those issues which is one of the biggest reasons to try to hire local counsel that knows how the judge generally responds to these daily litigation issues.
Kevin A. Spainhour, Esq. Spainhour Law Group www.slglawyer.com.
You must file ANY/ALL declaration generally with the moving papers. If you do not file them you miss your chance to use the declaration during any argument before the judge.