No Opposition to Motion?
4 attorney answers
Possibly but not necessarily. A party who fails to file a written opposition risks the court making a ruling based on an "unopposed motion." It is possible that the party that did not file an opposition will still appear at the hearing and orally oppose the motion. The judge may consider such oral opposition or may rule that the party lacks standing to argue against the motion in light of his failure to file a written opposition. If the motion is reasonably well taken and is unopposed, there is a very good chance that the court will rule in favor of the moving party. However, this is not an absolute guarantee. I have seen courts deny unopposed motions. This possibility is most likely with motions for summary judgment. If the moving papers lack some of the essential elements to prevail or is otherwise defective for one reason or another, the court may deny the motion.
This response is for information purpose only and does not constitute a legal advice. This response does not create an attorney-client relationship.
No, the court does not have to grant a motion just because there is no opposition. The moving party's motion must still be supported by evidence or whatever good cause is necessary before the court can grant a motion. The court can just as easily deny an unopposed motion.
The answer also depends upon the type of motion. For example, a Motion for Summary Judgment requires the moving party to establish that there are no triable issues of material fact and that the moving party is entitled to a judgment as a matter of law. Therefore, it is more difficult to prevail on a Motion for Summary Judgment when it is unopposed, than most other types of motions.
In contract, when an Demurrer to Complaint (or Cross-Complaint) is unopposed, most likely the Demurrer will be sustained either with or without leave to amend. Failure to oppose the Demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20).
Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.
I was curious what the motion is for and how it is pertinent to your case as well as what supporting evidence you would have. Yes, the answers here are correct. If you file a motion and it's unopposed in writing, the trier of fact can still deny it, or a litigant could show up in court either to argue the motion or request a continuance. A motion for reconsideration isn't out of the question in certain situations although you did not state any facts which would give me an idea of what the case is about.
I would not rely on the fact that the motion is unopposed to win (as they say on your motion). You probably already knew this, be prepared in court.
This answer does not create an attorney-client relationship. Ms. Johns is a lawyer although she is not your lawyer unless you have consulted with her or an authorized representative of her office and signed a letter agreement or fee agreement confirming Ms. Johns' representation of you.
Judges aren't obligated to grant any motion, unopposed or not. The motion still has be well-taken and supported by law and facts. But certainly not having a written opposition increases the chances that the judge will grant it.
The opposing party can still show up and argue, and can still file an untimely opposition, and it's within the discretion of the judge to decide whether they consider a late filed document (they often do) and allow someone to argue even without having filed an opposition (also often done).
Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.