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.
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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.
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.
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.