How To Not Lose Your Family Law Hearing Before It Begins - Timing Is Everything When Filing and Serving Your Paperwork
/DON'T PROCRASTINATE
You have been served Request for Orders by the other side. Court date in two months? 45 days? You toss the paperwork on the "to do" pile, and there it sits for a few weeks. That's ok, right? You have time.
Suddenly there's one week before the hearing, and you decide it is a good time to write a response. But, not so fast....you already blew a deadline.
A PAINFUL LESSON ABOUT CALIFORNIA CIVIL PROCEDURE, AND FILING THOSE DOCUMENTS
The California Code of Civil Procedure has clear wording on this matter. Unfortunately, they bury it in a scary-looking code book that even attorneys don't enjoy opening. Let me save you the misery: click this link for Code of Civil Procedure Section 1005(b), and read the last two sentences. Or, read below:
"All papers opposing a motion shall be filed with the court, and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing."
Notice the code says "court days". Weekends and holidays don't count. Let's say you have been served paperwork on April 15, and that date falls on a Monday. If you file a response on April 6, you may think it is a timely response, but you can only count Mondays through Fridays as court days. Therefore, you would be late if you filed and served the other side on the 6th.
FILING THE RESPONSE IS NOT ENOUGH - REMEMBER TO SERVE THE OTHER PARTY
Additionally, don't forget: you must make sure your written response/opposition is "reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers or reply papers, as applicable, are filed." See Code of Civil Procedure Section 1005(c). In other words, if you file your opposition, have someone else (not you) serve the response within one day of filing. Do NOT do it yourself because that is NOT considered proper service (it's in the Code, trust me).
I'M NOT AN ATTORNEY - WILL THE JUDGE BE MERCIFUL IF I DELAY MY FILING AND SERVICE?
If you are asking me if the judge will take pity on you for not knowing the rules, my answer is a simple "probably not." The judge or commissioner hears ten, twenty, sometimes thirty matters in one morning, and if your case is deep in the list, another unrepresented party/case may have already used up the judge's patience.
At best, the Honorable Judge may send you and the other party outside in the hallway to review your response, and additionally may wait until the other matters have been heard before calling your case again. You may end up in Court all day instead of a couple of hours, or even find the Court continuing your matter thirty to ninety days before your next appearance.
On the worst end of the spectrum, lack of timely filing and service may result in losing your hearing. There are judges and commissioners who, upon a proper and convincing objection by the other party for your lack of timely filing and/or service, will throw out your written response and ask you to make your argument on the spot. More often than not, your improvisational skills at re-creating your rejected written response will not be very good, and the Court will not be very patient waiting for your last minute attempts to re-create your written response.
THE SOLUTION : NO PROCRASTINATION, AND/OR HIRE AN EXPERIENCED ATTORNEY TO TAKE OVER YOUR MATTER
Be prepared. Don't wait weeks, or even more than a couple of days when preparing a response to a motion or request for order. Better yet, call an experienced attorney to take over your matter. I have been writing and filing responses in a timely manner since 2006. Call me at (951) 276 0500 to discuss either preparing and filing your motion or response in Family Court, or any other questions about your upcoming Family Law matter.