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.
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.
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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.