What is an Untimely Filed Motion?

Briefs “submitted after the deadline [set by the court] must be accepted for filing.” (CRC 3.1300(d).) But the court has full discretion to decide whether or not they will actually consider the brief in making their decision. (Rancho Mirage Country Club Homeowners Ass’n v. Hazelbaker, 206 Cal.Rptr.3d 233, 241 (2016).)

How to Structure the Motion

If there was a failure of a party to plead a cause of action “through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint…” (CCP § 426.50.) The court will grant such leave after giving notice to the other party and the leave is on terms just to both parties so long as the party who failed to plead did so in good faith. (Id.)

An application “for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed…and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (CCP § 473.)

The Court’s Decision

[T]here is a judicial preference to hear matters on their merits even when filings are late, but there must be good reason. (Kapitanski v. Von’s Grocery Co., Inc., 146 Cal.App.3d 29 (1983).)

“The court, upon any terms as may be just, relieve a party of his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473.) The court will consider whether the motion will significantly impair due process or encourage bad precedent. (Id.) If the court refuses to consider the motion “the minutes or order must so indicate.” (CRC 3.1300(d).)

However, due to the strong preference of the law to settle matters in trial on the merits if there are “any doubts in applying section 473 [they] must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock 38 Cal.3d 227, 233-234 (1985).)

Statute of Limitations

California Rules of Court “authorizes the filing of moving papers at least 16 court days before a hearing, an opposition at least 9 court days before a hearing, and a reply no later than 5 court days before the hearing.” (CRC 3.1300(d).)

Useful Rulings on Untimely Filed Motion

Recent Rulings on Untimely Filed Motion

OLUFEMI OGUNTOLU VS NINA C MONTOYA

The court considers the joint opposition and declaration filed June 15, 2020, as noted below, and does not consider the late-filed opposition and declaration of July 2, 2020. Legal Standard A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee. (CCP § 656.)

  • Hearing

    Jul 13, 2020

  • Type

    Real Property

  • Sub Type

    other

KELSEA SAKAMOTO VS GLENOAKS TOWNHOMES LLC, ET AL.

Under CRC Rule 3.1300(d), “If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” The opposition does not recognize that the papers were not only one court day late, but untimely by several months, to the great inconvenience of the Court, which initially worked up the matter without opposition.

  • Hearing

    Jul 10, 2020

  • Type

    Real Property

  • Sub Type

    Landlord Tenant

(NO CASE NAME AVAILABLE)

Nevertheless, given that Plaintiff filed her own late reply and was able to respond to the late opposition on July 7, 2020, a mere three days before the hearing, the Court will exercise its discretion to consider both late-filed papers. Analysis Plaintiff seeks leave to file a third amended complaint to add one factual allegations and two new causes of action: one for an accounting and one for violation of the Corporation Code. Plaintiff also seeks to amend her request for damages.

  • Hearing

    Jul 10, 2020

SCHNEIDER VS. KAY

The Court will consider this late filed reply, but there is insufficient time to do so before the original scheduled hearing date. This motion is continued to July 30, 2020 at 9:00 a.m. in D33. No other documents may be filed related to this motion.

  • Hearing

    Jul 09, 2020

DONATO SERRANO VS CROWN ENERGY SERVICE, INC., A CALIFORNIA CORPORATION

The 45-day limit is jurisdictional as the Court has no authority to grant late-filed papers. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) However, this 45-day limit is extended if served by mail, overnight delivery, fax, or electronically. (See CCP §§ 1010.6(a)(4), 1013.) Here, the parties have extended in writing the time to file a motion to compel further to February 28, 2020. (Glyeer Decl. Ex. C.) Accordingly, the instant motion, which was filed on February 28, 2020, is timely.

  • Hearing

    Jul 08, 2020

  • Type

    Employment

  • Sub Type

    Wrongful Term

  • Judge Elaine Lu
  • County

    Los Angeles County, CA

LILI TALEB, ET AL. VS THURMAN INTERIM CALIFORNIA LLC, AS LANDLORD OF THE COMPLEX, ET AL.

Plaintiffs late filed declarations are improper and should have been included in the moving papers. Regardless, Plaintiffs’ income was already considered by the Court during the March 11 hearing. Furthermore, Plaintiffs had been warned repeatedly that their continued discovery misconduct would result in sanctions, yet they continued to violate their discovery obligations. Under the circumstances the Court declines to reconsider its sanctions order.

  • Hearing

    Jul 07, 2020

  • Type

    Real Property

  • Sub Type

    Landlord Tenant

GEORGE STEPHAN, ET AL. VS LISA ANN BARKETT, ET AL.

The 45-day limit is jurisdictional as the Court has no authority to grant late-filed papers. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) However, this 45-day limit is extended if served by mail, overnight delivery, fax, or electronically. (See CCP §§ 1010.6(a)(4), 1013.) Here, Defendant William served his response on June 5, 2019 by mail. (Friedberg Decl. ¶ 4, Ex. 2.) Accordingly, the deadline to file a motion to compel further responses was July 25, 2019.

  • Hearing

    Jul 07, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

  • Judge Elaine Lu
  • County

    Los Angeles County, CA

ENCARNACION HERNANDEZ VS PRINCESS WINDOWS LLC ET AL

The court may refuse to consider a late-filed paper. (Cal. Rules of Court, Rule 3.1300(d).) Here, the reply was filed on June 30, 2020 – only four court days before the hearing date. Accordingly, the reply is untimely, and the court will not consider it.

  • Hearing

    Jul 07, 2020

  • Type

    Employment

  • Sub Type

    Other Employment

  • Judge Elaine Lu
  • County

    Los Angeles County, CA

PINA VS PARADISE WINGS ENTERPRISE [EFILE]

The court has considered defendant's late-filed opposition notwithstanding the court's discretionary authority to refuse consideration of an untimely filed paper under California Rule of Court 3.1300(d). Plaintiff's request for sanctions is granted in the reduced amount of $1,310 (5 hours at $250 per hour plus the $60 filing fee).

  • Hearing

    Jul 06, 2020

  • Type

    Employment

  • Sub Type

    Other Employment

BRENDEM PLONG, ET AL. VS RUSHMORE LOAN MANAGEMENT SERVICE LLC., ET AL.

Given that plaintiffs are self represented, the court finds that plaintiffs’ late filed first amended complaint should be allowed. Based on the foregoing, the motion to dismiss is DENIED.

  • Hearing

    Jul 06, 2020

  • Type

    Real Property

  • Sub Type

    Quiet Title

  • Judge

    Paul A. Bacigalupo or Virginia Keeny

  • County

    Los Angeles County, CA

LIN VS. EDWARDS LIFESCIENCES LLC

Defendant’s late filed Declarations cannot be considered. Moving Party is ordered to submit a Proposed Order Granting in Part and Denying In Part Summary Adjudication of Issues consistent with this Court’s order within ten (10) days of notice of this Order. The Court sets an OSC Re Submission of a Proposed Order Granting Summary Adjudication for 07/31/20 at 8:30 a.m. in this Department. Moving party to give notice.

  • Hearing

    Jul 02, 2020

SMITH V. PERKINS

These late-filed opposition papers did not reach the Court until the morning of Tuesday June 30, the day before the hearing. The Court has not had time to fully review the papers, and defendants have had no meaningful opportunity to prepare and file reply papers. Further, the Court’s preliminary review of the late-filed opposition papers indicates that plaintiffs are relying entirely on the date the recorder’s office mailed plaintiffs an endorsed copy of the recorded notice of lien.

  • Hearing

    Jul 01, 2020

COLLINS V LANGMUIR-LOGAN

A memorandum that exceeds 15 pages shall be considered in the same manner as a late filed paper. (CRC 3.1113(g).) At the discretion of the court, the court may refuse to consider a memorandum that exceeds 15 pages. (CRC, Rule 3.1300(d).) Garfield’s memorandum is disregarded to the extent it exceeds 15 pages. The parties are admonished and advised to ensure that all future filings are compliant.

  • Hearing

    Jul 01, 2020

VATCHE PAPAZIAN VS JACK BROWN ET AL

The 45-day limit is jurisdictional as the Court has no authority to grant late-filed papers. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) However, this 45-day limit is extended if served by mail, overnight delivery, fax, or electronically. (See CCP §§ 1010.6(a)(4), 1013.) Here, Defendants Jack Brown and Suzanne Brown each served their response on October 15, 2019, by mail. (Paredes Decl. Exhibits A, H.)

  • Hearing

    Jun 30, 2020

  • Judge Elaine Lu
  • County

    Los Angeles County, CA

ARTURO RUELAS, ET AL. VS WILLMAR ANTHONY COYTSOTELO, ET AL.

LATE FILED OPPOSITION In reaching this ruling, the Court has considered the opposition filed by the County of Los Angeles although it was not served on Plaintiffs’ counsel. Through Plaintiffs’ counsel’s diligence, Plaintiffs were able to obtain a copy of the opposition and file a timely reply brief, which the Court has considered. Plaintiffs have not demonstrated any prejudice arising from Defendant’s mistake. Moving party is ordered to give notice.

  • Hearing

    Jun 29, 2020

WINDSOR CAPITAL GROUP INC VS JOHN MOLLER ET

Supported by the declarations of counsel and of John Moller, it contends that because the Moller defendants had less than 8 business hours to oppose the late-filed motion in limine, it had overlooked the fact that Windsor itself had identified Matkins as an individual with knowledge of its claims in July 2017, and had long known that Matkins had knowledge of relevant facts. Defendants also note that the court has inherent power to reconsider and/or modify a prior ruling to rectify any error.

  • Hearing

    Jun 26, 2020

  • Judge Donna Geck
  • County

    Santa Barbara County, CA

OZRA YAZDANPANAH VS. SHAHNAZ MOKHTARI

Under CRC Rule 3.1300(d), “If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” Here, the opposition was served and filed on June 16, 2020, for a June 26, 2020 hearing date, only eight court days prior to the hearing, so was one court days late. The court, in its discretion, could refuse to consider the untimely opposition, but elects not to do so.

  • Hearing

    Jun 26, 2020

  • County

    Los Angeles County, CA

PANOPUS PLC VS PHILOUS, INC.

Rule of Court 3.1300(d) [“If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”].) I. SECOND CAUSE OF ACTION: FRAUD (IRON ORE AGREEMENT) With respect to the second cause of action for Fraud – Intentional Misrepresentation of Fact asserted by Panopus, Plc (“Panopus”), defendants argue that the authority of Hong and Eum to speak on behalf of Philous, Inc. (“Philous”) must be alleged. (Tarmann v. State Farm Mut. Auto. Ins.

  • Hearing

    Jun 26, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

SUSAN HANNAFORD, ET AL. VS SEVEN SATELLITE PTY LTD, ET AL.

Defendant requests that the Court exercise its discretion under Rule of Court 3.1300(d) and reject Plaintiffs’ late-filed material. (Id. at p. 2:8-9.) California Rules of Court rule 3.1300(d) states: “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” Defendant is correct that Plaintiffs’ opposition and supporting evidence was filed late.

  • Hearing

    Jun 26, 2020

SUSAN HANNAFORD, ET AL. VS SEVEN SATELLITE PTY LTD, ET AL.

Defendant requests that the Court exercise its discretion under Rule of Court 3.1300(d) and reject Plaintiffs’ late-filed material. (Id. at p. 2:8-9.) California Rules of Court rule 3.1300(d) states: “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” Defendant is correct that Plaintiffs’ opposition and supporting evidence was filed late.

  • Hearing

    Jun 26, 2020

EDWARD KERNS VS. VALENCIA BMW

Plaintiff has made no request that the Court accept late-filed declarations, beyond a statement that they will be provided at the hearing due to Plaintiff’s inability to secure signed declarations. (See Tran Decl., ¶¶ 2-5.) However, Defendants have had a reasonable chance to respond to the declarations. Therefore, in the interest of justice, the Court will allow Plaintiff to submit signed copies of the declarations at the hearing.

  • Hearing

    Jun 26, 2020

SUSAN HANNAFORD, ET AL. VS SEVEN SATELLITE PTY LTD, ET AL.

Defendant requests that the Court exercise its discretion under Rule of Court 3.1300(d) and reject Plaintiffs’ late-filed material. (Id. at p. 2:8-9.) California Rules of Court rule 3.1300(d) states: “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” Defendant is correct that Plaintiffs’ opposition and supporting evidence was filed late.

  • Hearing

    Jun 26, 2020

DONALD J. BIENVENU, SR. VS FCA US LLC, ET AL.

The 45-day limit is jurisdictional as the Court has no authority to grant late-filed papers. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) However, this 45-day limit is extended if served by mail, overnight delivery, fax, or electronically. (See CCP §§ 1010.6(a)(4), 1013.) Here, the parties extended the deadline for Plaintiff to file a motion to compel further to October 24, 2019. (Morse Decl. Ex. G.) Accordingly, this motion is timely.

  • Hearing

    Jun 24, 2020

  • Type

    Contract

  • Sub Type

    Breach

  • Judge Elaine Lu
  • County

    Los Angeles County, CA

DONALD J. BIENVENU, SR. VS FCA US LLC, ET AL.

The 45-day limit is jurisdictional as the Court has no authority to grant late-filed papers. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) However, this 45-day limit is extended if served by mail, overnight delivery, fax, or electronically. (See CCP §§ 1010.6(a)(4), 1013.) Here, the parties extended the deadline for Plaintiff to file a motion to compel further to October 24, 2019. (Morse Decl. Ex. G.) Accordingly, this motion is timely.

  • Hearing

    Jun 24, 2020

  • Type

    Contract

  • Sub Type

    Breach

  • Judge Elaine Lu
  • County

    Los Angeles County, CA

CLAVESILLA VS. STRONGKIDS MEDICAL GROUP, INC

Motion to Set Aside/Vacate Tentative Ruling: The Court has considered and reviewed all of the briefs and evidence submitted by parties, including the late-filed papers on 3-18-20, and 3-23-20. The Motion to Set Aside Default filed by Defendant, Ahmad Hajj, M.D. is GRANTED. Defendant, Ahmad Hajj, M.D. (“defendant” or “Dr. Hajj”), contends that on 7-23-18, plaintiff improperly served an Amended Statement of Damages on him by mail, as opposed to personal service, rendering the default void.

  • Hearing

    Jun 23, 2020

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