§ 1005. Requirement of written notice for certain motions; Time for serving and filing; Method of serving

(a) Written notice shall be given, as prescribed in subdivisions (b) and (c), for the following motions:

(1) Notice of Application and Hearing for Writ of Attachment under Section 484.040.
(2) Notice of Application and Hearing for Claim and Delivery under Section 512.030.
(3) Notice of Hearing for Claim of Exemption under Section 706.105.
(4) Motion to Quash Summons pursuant to subdivision (b) of Section 418.10.
(5) Motion for Determination of Good Faith Settlement pursuant to Section 877.6.
(6) Hearing for Discovery of Peace Officer Personnel Records in a civil action pursuant to Section 1043 of the Evidence Code.
(7) Notice of Hearing of Third-Party Claim pursuant to Section 720.320.
(8) Motion for an Order to Attend Deposition more than 150 miles from deponent’s residence pursuant to Section 2025.260.
(9) Notice of Hearing of Application for Relief pursuant to Section 946.6 of the Government Code.
(10) Motion to Set Aside Default or Default Judgment and for Leave to Defend Actions pursuant to Section 473.5.
(11) Motion to Expunge Notice of Pendency of Action pursuant to Section 405.30.
(12) Motion to Set Aside Default and for Leave to Amend pursuant to Section 585.5.
(13) Any other proceeding under this code in which notice is required, and no other time or method is prescribed by law or by court or judge.

(b) Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court. However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California, 10 calendar days if either the place of mailing or the place of address is outside the State of California but within the United States, and 20 calendar days if either the place of mailing or the place of address is outside the United States, and if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 16-day period of notice before the hearing shall be increased by two calendar days. Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section. All papers opposing a motion so noticed 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.
The court, or a judge thereof, may prescribe a shorter time.

(c) Notwithstanding any other provision of this section, all papers opposing a motion and all reply papers shall be served by personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, and 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. This subdivision applies to the service of opposition and reply papers regarding motions for summary judgment or summary adjudication, in addition to the motions listed in subdivision (a).
The court, or a judge thereof, may prescribe a shorter time.

  1. Generally

The time for hearing an application for a writ of assistance may be shortened. California Mortg. & Sav. Bank v. Graves (Cal. Sept. 5, 1900), 129 Cal. 649, 62 P. 259.

The time for giving notice of a motion to tax costs may be shortened. Furtinata v. Butterfield (Cal. App. Aug. 4, 1910), 14 Cal. App. 25, 110 P. 962.

The five-day period provided by § 594 may not be shortened. Cahill v. Verdier (Cal. App. Oct. 6, 1921), 54 Cal. App. 465, 202 P. 154.

This section vests the court with discretion to shorten the time for giving notice of a motion. Davison v. Gentry (Cal. App. Jan. 26, 1934), 136 Cal. App. 423, 29 P.2d 266.

Notice of motion must be given whenever order sought may affect rights of adverse party. Caledonian Ins. Co. v. Superior Court of Alameda County (Cal. App. 1st Dist. Apr. 3, 1956), 140 Cal. App. 2d 458, 295 P.2d 49.

In construing order, resort may be made to notice of motion. Western Greyhound Lines v. Superior Court of Los Angeles County (Cal. App. 2d Dist. Nov. 17, 1958), 165 Cal. App. 2d 216, 331 P.2d 793.

Doctrine of “special appearance” applies by analogy to motion procedure. Batchelor v. Finn (Cal. App. Apr. 7, 1959), 169 Cal. App. 2d 410, 341 P.2d 803.

While ordinarily notice of motion must be in writing, rule is not inexorable and it will not be required where to do so would be to effectuate an absurdity. Thieme v. Commercial Lighting & Maintenance Co. (Cal. App. 1st Dist. Feb. 1, 1960), 177 Cal. App. 2d 575, 2 Cal. Rptr. 382.

Notice of motion should be deemed adequate to meet code requirements if it fairly advises opposing counsel of issues to be raised, and documents referred to in notice and attached to it may be considered in determining adequacy. Tarman v. Sherwin (Cal. App. 1st Dist. Feb. 9, 1961), 189 Cal. App. 2d 49, 10 Cal. Rptr. 787.

Matters stated in affidavits or argument in support of motion may not expand nature and grounds of motion itself, and court is limited to consideration of grounds stated in notice of motion. Josephson v. Superior Court of Los Angeles County (Cal. App. 2d Dist. Aug. 15, 1963), 219 Cal. App. 2d 354, 33 Cal. Rptr. 196.

The noticing of a motion does not necessarily set the date for the hearing; the notice of motion is distinct from the motion itself, and counsel must be present and actually make the motion. Woodman v. Selvage (Cal. App. 1st Dist. June 24, 1968), 263 Cal. App. 2d 390, 69 Cal. Rptr. 687.

On a motion by defendant in a civil action to quash service of summons for a lack of personal jurisdiction, the trial court erred in refusing to consider plaintiff’s opposition papers on the ground that they were not timely filed at least five “court” days before the scheduled hearing on the motion, as required by Cal. Rules of Court, rule 317(a), and a local court rule, where the papers were filed five “calendar” days before the hearing as provided by CCP § 1005. Since rule 317(a) and the local court rule were inconsistent with § 1005, to that extent they did not have the force of law. Furthermore, even when local rules have the force of law, courts should always exercise their discretion and relieve an attorney from tardy opposition filing when his conduct was reasonable. Counsel planned the filing of his opposition papers according to the office master calendar, the “calendar person” declared she relied on her past experience that such papers were due at least five calendar days before a hearing, and, in light of § 1005, there was a reasonable excuse for what the court found to be an untimely filing. Iverson v. Superior Court (Cal. App. 4th Dist. Apr. 29, 1985), 167 Cal. App. 3d 544, 213 Cal. Rptr. 399.

The Legislature intended the word “days” as used in CCP § 1005, requiring papers opposing a noticed motion to be filed “at least five days before the time appointed for the hearing,” to be construed in its everyday sense as meaning calendar days. Accordingly, Cal. Rules of Court, rule 317(a), and a local court rule requiring such papers to be filed five “court” days before the scheduled hearing were inconsistent with § 1005 and to that extent did not have the force of law. Iverson v. Superior Court (Cal. App. 4th Dist. Apr. 29, 1985), 167 Cal. App. 3d 544, 213 Cal. Rptr. 399.

The trial court did not err in denying defendant surety’s motion to vacate a forfeiture and to have its bond exonerated pursuant to Penal C § 1305 where the motion sought to set aside the bail forfeiture on the grounds specified in Penal C § 1305(g), and the motion was denied because only 12 days’ notice of hearing was given. Defendant’s contention that 12 days’ written notice of hearing on the motion was legally sufficient, in reliance on the provisions of § 1305 former subd.(c)(4), which provides that a trial court has the discretion to give the prosecuting attorney up to 10 days’ notice of a hearing on a motion to vacate a bail forfeiture under specified circumstances, was without merit since none of those specified circumstances applied to the present case. The People are entitled to 15 days’ (now 21 days’) notice of hearing on the motion pursuant to CCP § 1005(b) when a surety attempts to set aside a bail forfeiture on the grounds specified in Penal C § 1305(g). People v. American Contractors Indemnity (Cal. App. 2d Dist. Sept. 9, 1999), 74 Cal. App. 4th 1037, 88 Cal. Rptr. 2d 572.

Preliminary hearing magistrate properly denied a Pitchess motion because defendant is not entitled to seek Pitchess discovery for use in a preliminary hearing; court reasoned that Pitchess motions could interrupt the streamlined proceedings of preliminary hearings, given that such motions were governed by the notice requirements of CCP § 1005. Galindo v. Superior Court (Cal. App. 2d Dist. Jan. 7, 2009), 169 Cal. App. 4th 1332, 88 Cal. Rptr. 3d 73, 2009 Cal. App. LEXIS 8, review granted, depublished, (Cal. Mar. 25, 2009), 91 Cal. Rptr. 3d 516, 203 P.3d 1112, 2009 Cal. LEXIS 3436, aff’d, superseded, (Cal. July 22, 2010), 50 Cal. 4th 1, 112 Cal. Rptr. 3d 673, 235 P.3d 1.

  1. Construction

CCP § 1013, which extends the time within which a right may be exercised or act be done on service by mail, does not apply to rights or acts arising incident to a hearing on a motion noticed pursuant to CCP § 1005, providing that the notice of motion must be given at least 10 days before the time appointed for the hearing. Amendments to CCP § 1005, effective January 1, 1981, reaffirm its status independent of CCP § 1013, provide for added notice on service by mail of a noticed motion and expressly preclude application of the words of limitation of CCP § 1013, limiting its application “to a notice of motion governed by this section.” The amendments are prospective and only affect notice of a hearing to be held after their effective date. De Miglio v. Superior Court (Cal. App. 3d Dist. Feb. 17, 1981), 115 Cal. App. 3d 973, 171 Cal. Rptr. 787.

Although a notice of motion and motion to compel compliance by a deponent had been served within the 60-day time period, the motion was nevertheless untimely because the supporting papers were not attached or timely served; it did not qualify under this section as a motion made as otherwise specifically provided by law. Weinstein v. Blumberg (Cal. App. 2d Dist. July 17, 2018), 235 Cal. Rptr. 3d 658, 25 Cal. App. 5th 316.

2.5. Construction with Other Law

Request for attorney’s fees as sanctions for a frivolous anti-SLAPP motion was properly submitted in the opposition to the motion because the time limit for the opposition made it impracticable to comply with the safe harbor and separate motion requirements of CCP § 128.5 in the anti-SLAPP context. The impossible safe harbor procedure created by the sanctions order prerequisite is not invalidating but means the procedure applies as much as possible, except when it would not be practical. Changsha Metro Group Co., Ltd. v. Xufeng (Cal. App. 4th Dist. Nov. 3, 2020), 270 Cal. Rptr. 3d 853.

  1. Applicability

Resistance of an application for an order prescribing a shorter time for giving notice of a hearing of a motion is not a waiver of future delay in bringing the matter to the court’s attention or an indication of willingness that the hearing of the motion should be delayed. Davison v. Gentry (Cal. App. Jan. 26, 1934), 136 Cal. App. 423, 29 P.2d 266.

Defendants in a civil action were entitled to a writ of mandate directing the trial court to vacate its order certifying it as a class action and certifying the class, and related orders, where the order was made without notice to defendants that the class certification motion would be considered at an evaluation conference, they had not filed opposition to it, and discovery relating to the class action issues had not been completed by either party. Although a motion to certify a class action is not listed in CCP § 1005 (motions requiring written notice), that statute is not all inclusive. Due process requires that an order with such significant impact on the viability of a case not be made without a full opportunity to brief the issues and present evidence. This is true whether the issue is presented in a motion or by way of an order to show cause issued by the court. In addition, each party should have an opportunity to conduct discovery on class action issues before its documents in support of or in opposition to the motion must be filed. Carabini v. Superior Court (Cal. App. 4th Dist. June 28, 1994), 26 Cal. App. 4th 239, 31 Cal. Rptr. 2d 520.

Properly noticed Pitchess motion does not restrict disclosure of information, but instead merely allows sufficient time for a law enforcement agency and its officers to challenge and scrutinize the adequacy of the motion in question; thus, the balance between a fair trial and an officer’s interest in privacy is maintained. City of Tulare v. Superior Court (Cal. App. 5th Dist. Dec. 17, 2008), 169 Cal. App. 4th 373, 86 Cal. Rptr. 3d 707.

Although a timely motion is not necessary to obtain a transfer to a court having jurisdiction, denying a transfer was not an abuse of discretion because the case would have been dismissed in any event for failure to exhaust administrative remedies. PegaStaff v. Public Utilities Com. (Cal. App. 1st Dist. Apr. 29, 2015), 236 Cal. App. 4th 374, 186 Cal. Rptr. 3d 510.

Employers who satisfied the initial burden of establishing the existence of an arbitration agreement by attaching a copy to their petition to compel arbitration were not required to establish the authenticity of a former employee’s electronic signature until challenged; thus, the deadline for moving papers did not govern their supplemental declaration, which sufficiently authenticated the signature by describing the employers’ secure procedures and concluding that the employee must have signed. Espejo v. Southern California Permanente Medical Group (Cal. App. 2d Dist. Apr. 22, 2016), 246 Cal. App. 4th 1047, 201 Cal. Rptr. 3d 318.

Vexatious litigant’s claims were subject to automatic dismissal without need to comply with this section’s notice requirements for motions, but it was error to dismiss without notice personal claims asserted in the same complaint by another individual who had not been declared vexatious. Hupp v. Solera Oak Valley Greens Assn. (Cal. App. 4th Dist. June 23, 2017), 220 Cal. Rptr. 3d 81, 12 Cal. App. 5th 1300.

Trial court did not err in considering a response to a petition to compel arbitration, although the response was not filed by the deadline for such responses, because there was some authority for applying the general motions deadline; in any event, an extension of time for good cause was permissible because there had been no showing of undue prejudice. Correia v. NB Baker Electric, Inc. (Cal. App. 4th Dist. Feb. 25, 2019), 244 Cal. Rptr. 3d 177, 32 Cal. App. 5th 602.

  1. Notice

An order to show cause is a notice of motion. Marshank v. Superior Court of Los Angeles County (Cal. App. 2d Dist. May 3, 1960), 180 Cal. App. 2d 602, 4 Cal. Rptr. 593.

Because order to show cause is, in effect, notice of motion, and preliminary hearing thereon for relief pendente lite is proceeding independent of, and collateral to, main action, court should not consider merits of case further than is necessary to grant relief requested. Chichester v. Chichester (Cal. App. 5th Dist. July 16, 1964), 228 Cal. App. 2d 491, 39 Cal. Rptr. 553.

In a case involving an international custody dispute, the trial court’s award of attorney fees to the father was subject to reversal because the trial court failed to accord the mother due process in ruling on the fees motion. The trial court failed to enforce the notice requirements of CCP § 1005, which resulted in the mother lacking a meaningful opportunity to review and effectively oppose the fees motion. Noergaard v. Noergaard (Cal. App. 4th Dist. Oct. 29, 2020), 271 Cal. Rptr. 3d 905, 57 Cal. App. 5th 841, 2020 Cal. App. LEXIS 1125, cert. denied, (U.S. May 17, 2021).

  1. Legislative Intent

Trial court did not have the authority to shorten the minimum notice period for hearing a motion for summary judgment in the absence of the parties’ express consent. In reaching that conclusion, the court noted the contrast between the legislature’s decision not to grant trial courts discretion to shorten the notice period for hearings on summary judgment motions with the authority granted trial courts in CCP § 1005. Urshan v. Musicians’ Credit Union (Cal. App. 2d Dist. July 14, 2004), 120 Cal. App. 4th 758, 15 Cal. Rptr. 3d 839.

  1. Service

A notice of motion to modify a final decree of divorce as to the amount that should be paid by the defendant for the support of his minor children may be served on his attorney of record, where the defendant is absent from the state, and whether such attorney is still the attorney for the defendant at the time of the notice is a question of fact for the trial court to determine. Moore v. Superior Court of San Francisco (Cal. Jan. 27, 1928), 203 Cal. 238, 263 P. 1009.

The fact that the opposing party has notice of the hearing other than that which was mailed an insufficient time before the hearing is immaterial. Five-O-Drill Co. v. Superior Court of Los Angeles County (Cal. App. Apr. 14, 1930), 105 Cal. App. 232, 287 P. 145.

The court was without jurisdiction of a new trial where the order granting it was based upon a motion made without notice having been given as required by this section, service having been by mail and the proper number of days not having been added to the five days’ notice. Five-O-Drill Co. v. Superior Court of Los Angeles County (Cal. App. Apr. 14, 1930), 105 Cal. App. 232, 287 P. 145.

Requirement that written notice of motion must be given five days before time appointed for hearing if court is held in county in which at least one of attorneys of party notified has his office was satisfied by service of notice of motion on defendants’ attorney of record having office in county in which hearing was to be held eight days before such hearing, despite defendants’ claim that attorney’s authority had been terminated, where there was no offer of proof that attorney had been discharged and where plaintiff was not informed, before service of notice, that there had been change of attorneys. Dennis v. Overholtzer (Cal. App. 1st Dist. Apr. 25, 1962), 202 Cal. App. 2d 751, 21 Cal. Rptr. 83.

Service of defendants’ motion to dismiss was timely where the motion was calendared for May 6, 2009, and, calculating backwards for 16 court days for service and 5 additional days for service by mail, defendants were required to file the motion and serve plaintiff no later than April 9, 2009. The motion to dismiss was timely filed on April 8, 2009, and the proof of service by mail attached to the moving papers was dated April 6, 2009. Stasz v. Eisenberg (Cal. App. 2d Dist. Dec. 10, 2010), 190 Cal. App. 4th 1032, 120 Cal. Rptr. 3d 21.

  1. Time Limitations

On appeal from a judgment of dismissal under former CCP § 583(a), (see now CCP § 583.310) for failure to bring an action to trial within two years (now five years), plaintiff could not successfully challenge the propriety of the trial court’s order shortening the time for service of defendant’s motion to dismiss from the 45 days provided by Cal. Rules of Court, Rule 203.5 (now Cal. Rules of Court, Rule 243.9), so that the hearing date coincided with that of plaintiff’s previously filed motion to set the case for trial. Since the 45-day period is intended to afford ample time to complete preparation and to move to set the case for trial, plaintiff could not have been prejudiced by the shortening, and any defect in timeliness was waived by his failure to object and his appearance in opposition to the motion to dismiss. Moreover, plaintiff made no motion to set aside the order of dismissal on the ground it was improvidently made because of lack of sufficient notice. Farrar v. McCormick (Cal. App. 2d Dist. May 18, 1972), 25 Cal. App. 3d 701, 102 Cal. Rptr. 190.

Dismissal of an individual’s suit for failure to prosecute under the provisions of CCP § 583.410 was affirmed because the trial court had the power to shorten the time for hearing on a motion for discretionary dismissal under the provisions of CCP § 1005, Cal. R. Ct. 373 was not meant to apply to a motion to dismiss which followed a hearing on a motion to specially set a case for trial because a plaintiff could not enjoy the benefits of a preferential trial date and still escape scrutiny of his dilatory behavior, the individual suffered no loss of his due process right to challenge the order shortening time, and he was not prejudiced by the bank’s violation of Cal. R. Ct. 379(a), if any. Eliceche v. Federal Land Bank Assn. (Cal. App. 5th Dist. Dec. 2, 2002), 103 Cal. App. 4th 1349, 128 Cal. Rptr. 2d 200.

Postjudgment motion for sanctions was timely under CCP § 1005(b) because it was served and filed more than 16 court days before the hearing on the motion, regardless of the motion cutoff date for various pretrial motions. Day v. Collingwood (Cal. App. 4th Dist. Nov. 16, 2006), 144 Cal. App. 4th 1116, 50 Cal. Rptr. 3d 903.

Court-initiated judgment notwithstanding the verdict was invalid in a personal injury case because it was premature under CCP § 659, because it was not brought upon five days’ notice under CCP § 629, and because it lacked written notice of the motion and grounds under CCP § 1005(a)(13). Webb v. Special Electric Co., Inc. (Cal. App. 2d Dist. Mar. 14, 2013), 214 Cal. App. 4th 595, 153 Cal. Rptr. 3d 882, 2013 Cal. App. LEXIS 200, modified, (Cal. App. 2d Dist. Apr. 10, 2013), review granted, depublished, (Cal. June 12, 2013), 157 Cal. Rptr. 3d 569, 301 P.3d 1176, 2013 Cal. LEXIS 5065, aff’d, superseded, (Cal. May 23, 2016), 63 Cal. 4th 167, 202 Cal. Rptr. 3d 460, 370 P.3d 1022.

Time properly began to run when defendant’s special motion to strike was received, not counting prior service attempts, and the calendar was not reset by defendant’s ex parte continuance request. Defendant complied with all statutory service requirements. Hupp v. Freedom Communications, Inc. (Cal. App. 4th Dist. Nov. 7, 2013), 221 Cal. App. 4th 398, 163 Cal. Rptr. 3d 919.

Factual allegations in a petition to compel arbitration did not have to be deemed admitted, even though the response was untimely, because good cause to consider the late-filed opposition was provided by counsel’s explanation that the petition was treated as a motion, and the employer’s reply papers avoided any prejudice. Ruiz v. Moss Bros. Auto Group, Inc. (Cal. App. 4th Dist. Dec. 23, 2014), 232 Cal. App. 4th 836, 181 Cal. Rptr. 3d 781.

  1. Waiver

On an appeal from an order in a divorce action, made on a contempt hearing for failure to pay alimony pendente lite, directing the husband to pay his wife a specified sum in full settlement of alimony claims and particularly of alimony directed to be paid by the interlocutory decree, it must be presumed that in connection with the order to show cause why the husband should not be punished for contempt the parties submitted to the court the entire matter of alimony, and that a motion for modification of the decrees for alimony was made orally and notice thereof waived, where the proceedings on said hearing and on previous occasions leading up thereto when continuances were had are not set forth in the record either by reporter’s transcript or bill of exceptions. Keck v. Keck (Cal. Oct. 31, 1933), 219 Cal. 316, 26 P.2d 300.

An attorney cannot through his own action in open court consent to a date for hearing a motion which does not permit of the legal time of notice and thereafter complain that the time of service was not legally sufficient. McGarvey v. Southern Pacific Milling Co. (Cal. App. Mar. 28, 1935), 5 Cal. App. 2d 604, 43 P.2d 354.

Where an injunction is granted without notice, and the person enjoined instead of relying solely on the lack of proper notice, requests additional relief on the merits, by such general appearance he waives the special objection that there was a lack of proper notice. Lacey v. Bertone (Cal. Mar. 22, 1949), 33 Cal. 2d 649, 203 P.2d 755, 1949 Cal. LEXIS 225.

The rule of waiver by a general appearance, which applies when the defect consists in a failure to serve summons, is likewise applicable when there is a failure to give proper notice of subsequent proceedings to a party who has appeared in the action. Lacey v. Bertone (Cal. Mar. 22, 1949), 33 Cal. 2d 649, 203 P.2d 755.

Any defect in the timeliness of service of notice of motion to confirm a referee’s report is waived, where the complaining party’s attorney appears at the hearing and contests the report. Chapman v. Gipson (Cal. App. Apr. 19, 1951), 103 Cal. App. 2d 585, 229 P.2d 834.

Where defendants’ purported motion to dismiss was not noticed for hearing, notice was not waived and no motion to dismiss was submitted to the court for decision, the defendants’ arguments for dismissal in their “History of Litigation and Issues Involved,” made subsequent to the hearing, could not cure defects in the defendants’ procedure to obtain a dismissal of the actions and the plaintiffs’ refusal to be drawn into debate on a motion not before the court could not be construed as acquiescence in the validity of the motion. Harris v. Board of Education (Cal. App. 1st Dist. July 22, 1957), 152 Cal. App. 2d 677, 313 P.2d 212.

Plaintiff waived his right to the 45-day notice required by Cal. Rules of Court, Rule 203.5 (a) (see now Cal. Rules of Court, Rule 243.9), before an involuntary dismissal of an action, where the record was silent as to plaintiff’s contention that the trial court coerced him into such waiver by threatening to vacate the trial date, where under CCP § 1005, the notice period may be shortened, and where after the trial court set its motion to dismiss plaintiff had 29 days within which to appear specially to object to the court’s motion on its timeliness or to seek appellate relief, but, to the contrary, he appeared and argued the motion on its merits. Kunzler v. Karde (Cal. App. 3d Dist. Aug. 26, 1980), 109 Cal. App. 3d 683, 167 Cal. Rptr. 425.

A trial court was not without jurisdiction to compel a nonparty witness in a deposition involving a child support modification proceeding who had refused to answer certain questions by the attorney for the child’s mother to compel the witness to answer the questions and to impose sanctions against the witness even though service of the motion on the witness had been effected only eight days before the hearing thereon, whereas service of not less than ten days before the hearing was required under CCP § 1005, where certain acts of the witness in opposing the motion constituted his general appearance in the matter. The acts that constituted his general appearance included his filing of a voluminous opposition to the motion in which he not only objected to the court’s jurisdiction, but asked for other relief that could properly be given only if the court had jurisdiction of his person, such as denial of the request for sanctions on the merits, and attorney fees for himself, and his filing of a motion to disqualify the trial judge under the statute that limited the availability of such a motion to “any party to such action or proceeding who has appeared therein” (CCP § 170(5)). In re Marriage of Lemen (Cal. App. 2d Dist. Dec. 22, 1980), 113 Cal. App. 3d 769, 170 Cal. Rptr. 642.

  1. Remedies

If notice is not given of the time of hearing of a motion for new trial as required by this section, the party entitled thereto should move to set aside the order granting the new trial upon the ground that it was improvidently made for lack of sufficient notice. Armstead v. Jackson (Cal. App. Sept. 24, 1929), 100 Cal. App. 725, 280 P. 1028.

  1. Error

Trial court’s general order that required a case report in asbestos cases was invalid in its entirety because its requirements conflicted with the work product doctrine. Therefore, a motion to dismiss under CCP § 1005(b), based on failure to comply with the general order, should not have been granted. Snyder v. Superior Court (Cal. App. 2d Dist. Dec. 18, 2007), 157 Cal. App. 4th 1530, 69 Cal. Rptr. 3d 600.

In a juvenile delinquency case where the minor’s counsel moved for additional information after juvenile court had previously granted an order releasing names and contact information related to complaints against police officers following a properly noticed Pitchess motion, trial court erred in ordering disclosure of additional information where the second motion was not properly noticed because it was more than a mere continuation of the original motion, as it sought disclosure of additional, previously undisclosed information based on new facts, thus making it subject to the safeguards of a properly noticed motion; trial court’s action deprived the city of due process because by holding the hearing in an expedited fashion, trial court precluded the city from having sufficient time to prepare for the motion in a meaningful manner. City of Tulare v. Superior Court (Cal. App. 5th Dist. Dec. 17, 2008), 169 Cal. App. 4th 373, 86 Cal. Rptr. 3d 707.

  1. Eminent Domain

Procedure for special setting by judge of condemnation case for pretrial conference and trial need not conform in all respects to rules for filing and notice which apply to routine setting by clerk; special settings on motion under former Cal R of Court 209(a), 225, provide appropriate means to accelerate eminent domain proceedings and bring them to trial expeditiously in accordance with legislative requirement that courts give these actions preference over all other civil actions in matter of setting for trial and hearing, and are authorized by statute giving courts and judges specific authority in all cases to shorten time for notice and hearing of motions. Swartzman v. Superior Court of Los Angeles County (Cal. App. 2d Dist. Dec. 14, 1964), 231 Cal. App. 2d 195, 41 Cal. Rptr. 721.

  1. Divorce

Although a former wife argued that the amount of notice she received for hearing on her former husband’s third motion for sanctions was a day short of the time required by CCP § 1005, the irregularity was not reversible because the wife was not prejudiced; former wife’s objection to the timing of the notice, both on appeal and at trial, was perfunctory. In re Marriage of Falcone & Fyke (Cal. App. 6th Dist. July 8, 2008), 164 Cal. App. 4th 814, 79 Cal. Rptr. 3d 588.

  1. Custody

Trial court erred in modifying a shared custody arrangement to give the mother sole custody and to permit her to move out of the state with the children under Fam C § 7501(a) because the mother did not request affirmative relief under Fam C § 213 in response to the father’s custody modification request, the purpose of a custody evaluation pursuant to Ev C § 730 was not specified as required by Cal. R. Ct. 5.220(d)(1)(B), good cause was lacking for an order shortening the CCP § 1005(b) minimum notice period, the father was denied a continuance to present a rebuttal expert witness, and the father was not personally served as mandated by Fam C § 215. In re Marriage of Seagondollar (Cal. App. 4th Dist. May 25, 2006), 139 Cal. App. 4th 1116, 43 Cal. Rptr. 3d 575.