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

ANDRES ASCENCIO, ET AL. VS FCA US LLC, ET AL.

California Rules of Court, rule 3.1300(d) provides that “if the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” Defendant argues that the Court should decline to consider the late-filed supplemental declarations of Anh Nguyen as untimely and moot in light of the dismissal of the case with prejudice. (Sur Reply, p. 3:19-20.)

  • Hearing

    Dec 03, 2020

  • Type

    Contract

  • Sub Type

    Breach

LIANNA NIKOLAYEVA VS ARMOND AGHAKHANI, D.D.S., ET AL.

The Court declines to consider late filed opposing papers pursuant to California Rules of Court, rule 3.1300, subdivision (d). BACKGROUND On December 11, 2018, Plaintiff filed a complaint against Defendants Armond Aghakhani, D.D.S., Soheila Radan, D.D.S. (“Defendant Radan”), Smile With Us Sohab DDS, Inc., and Smile With Us Dental Group. Plaintiff alleges medical malpractice in the complaint arising from negligently administered dental care on March 10, 2018.

  • Hearing

    Dec 02, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Medical Malpractice

HRACH ROSTAMI VS ALL PRO COMMUNICATIONS TECHNOLOGIES, INC

However, as Rostami still timely filed a reply, any prejudice was minimal and the court exercises its discretion to consider the late-filed opposition brief. Rostami also argues that the opposition brief -- or at least the “Offer of Proof” portion of the brief -- should be stricken for failing to comply with the evidentiary requirements of Local Rule 3.231. Rostami notes that Respondents did not provide any documentary evidence with their opposition and rely entirely on declarations. Reply at 3.

  • Hearing

    Dec 01, 2020

  • Type

    Administrative

  • Sub Type

    Writ

CARLOS TORRES ET AL VS ALVARADO LLC ET AL

ANALYSIS Motion To Enforce Settlement Late-Filed Opposition Defendant’s opposition was due on November 13, 2020, given the Court holidays on November 26 and November 27. The opposition was filed a week late, on November 20, 2020. The Court has exercised its discretion to consider the late-filed opposition. However, the opposition is not based on an argument that the Court lacks jurisdiction to reach, as discussed below. Therefore, considering the opposition did not alter the analysis below.

  • Hearing

    Nov 30, 2020

  • Type

    Real Property

  • Sub Type

    Landlord Tenant

KIAN MORADZADEH VS CITY OF LOS ANGELES, A CALIFORNIA PUBLIC ENTITY, ET AL.

Plaintiff’s opposition is untimely and Plaintiff failed to provide the Court with any explanation for this late filed opposition. The court will exercise its discretion and not consider Plaintiff’s late opposition. (CRC Rule 3.1300(d).) The City demurs to the first, second, fourth, fifth, sixth, and eighth causes of action in the first amended complaint for failure to state sufficient facts to state a cause of action.

  • Hearing

    Nov 25, 2020

TIMOTHY JAMES ANDERSON VS COUNTY OF LOS ANGELES SHERIFF'S DEPARTMENT; COUNTY OF LOS ANGELES

This must be raised in a notice motion, not a late-filed opposition. CONCLUSION The motion is GRANTED. Defendant is dismissed from Plaintiff’s complaint with prejudice. Defendant is ordered to give notice of this ruling. The parties are directed to the header of this tentative ruling for further instructions.

  • Hearing

    Nov 24, 2020

(NO CASE NAME AVAILABLE)

But the court finds that the motion was made in part due to Plaintiff’s failure to deal with this issue, either by seeking entry of default judgment, moving to strike the late-filed answer, or simply coming to terms with Salimi as to his default-status. Nonetheless, the court will allow $650 in sanctions payable to Plaintiff by Defendant’s counsel. CONCLUSION The motion is DENIED. Defendant Jeff I.

  • Hearing

    Nov 24, 2020

NUNEZ VS. AVALONBAY COMMUNITIES, INC.

The Court exercised its discretion to consider the late-filed Opposition filed by Plaintiff. Apparently, Plaintiff served a supplemental response on November 9, 2020 providing a response to subpart (d). With respect to multiple medical providers, Plaintiff provided an amount. But with respect to several others (numbers 1-3), Plaintiff stated: Plaintiff has conducted a diligent search and at this time does not have the requested information in her possession, custody and/or control.

  • Hearing

    Nov 23, 2020

LUCA FOSCHINI VS SHALINI ANANDA

Courts refuse to consider a late filed anti-SLAPP motion on the merits. The proper procedure is to seek leave to file the late motion articulating extenuating circumstances justifying a late filing. Platypus Wear, Inc. v. Goldberg, 166 Cal.App.4th 772, 775 (2008). Defendant did not do that. Instead, she filed the motion 17.5 months after service of the complaint and a year after filing her answer.

  • Hearing

    Nov 20, 2020

  • Judge Donna Geck
  • County

    Santa Barbara County, CA

STEPHEN M. FELDMAN, INC., A PROFESSIONAL LAW CORPORATION VS ADELA GREGORY

The court may thus refuse to consider the late-filed opposition. (See CRC Rule 3.1300(d).) In the present circumstances, the court considers the late-filed opposition. CCP § 391.7 A litigant who has been determined to be a vexatious litigant may be prohibited from filing new litigation unless the litigant obtains leave to do so from the presiding judge or justice of the court where the litigant intends to file.

  • Hearing

    Nov 20, 2020

CHARLENE TANG VS 829 FLOWER, LLC , ET AL.

An oversized paper is considered the same as a late-filed paper. (Id. at (g).) However, a party may apply for leave to file a longer memorandum. (Id. at (e).) “A memorandum that exceeds 10 pages must include a table of contents and a table of authorities. A memorandum that exceeds 15 pages must also include an opening summary of argument.” (Id. at (f).) The Court may refuse to consider a late-filed paper. (Cal. Rules of Court, Rule 3.1300(d).)

  • Hearing

    Nov 20, 2020

  • Type

    Real Property

  • Sub Type

    other

  • Judge Elaine Lu
  • County

    Los Angeles County, CA

RIVERA VS. ALLCOM ELECTRIC, INC.

Similarly, this Court may consider late-filed oppositions for good cause if there is no undue prejudice to the moving party and in furtherance of the strong policy favoring disposition of claims on the merits. (Correia v. NB Baker Electric, Inc., supra, 32 Cal.App.5th at 613; Ruiz v. Moss Bros.

  • Hearing

    Nov 19, 2020

JOSE ALBERTO MORA GARCIA VS. SOUTH BEACH BAR & GRILLE INC

The court, on its own motion, orders hearing on Plaintiff's Motion for Preliminary Approval CONTINUED to Wednesday, November 25, 2020 at 8:30 a.m. in Department 65 due to Plaintiff's late-filed papers.

  • Hearing

    Nov 19, 2020

  • Type

    Employment

  • Sub Type

    Other Employment

ESTATE OF LESLIE LLOYD BURNETT

- This matter is resolved by the late-filed proof of service. The primary concern was that statutory notice requirements set out in Probate Code section 10451(c) were not met. That concern is was resolved by language in the Proof of Service, late-filed on November 12, 2020. b) Why the personal representative was reimbursed for any of the several out-of-pocket expenses in the disbursements schedule without a court order, in violation of Probate Code section §9252.

  • Hearing

    Nov 18, 2020

ESTATE OF LESLIE LLOYD BURNETT

- This matter is resolved by the late-filed proof of service. The primary concern was that statutory notice requirements set out in Probate Code section 10451(c) were not met. That concern is was resolved by language in the Proof of Service, late-filed on November 12, 2020. b) Why the personal representative was reimbursed for any of the several out-of-pocket expenses in the disbursements schedule without a court order, in violation of Probate Code section §9252.

  • Hearing

    Nov 18, 2020

PAULINE ZAMUDIO VS DYER'S GARAGE DOORS, ET AL.

November 18, 2020 THE COURT WILL HEAR ARGUMENT AS TO WHETHER THE COURT SHOULD CONSIDER THE LATE FILED AND UNAUTHORIZED "REPLY TO REPLY" FROM PLAINTIFF FILED ON 11/16/2020, WHETHER THE MATTER SHOULD BE CONTINUED TO ALLOW MOVING PARTY TO RESPOND, ETC.

  • Hearing

    Nov 18, 2020

  • Type

    Employment

  • Sub Type

    Other Employment

MARCUS MARQUEZ VS SHAMMAS INVESTMENT LLC

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 served its response on December 12, 2019 by mail. (Lander RPD Decl. ¶ 2.)

  • Hearing

    Nov 17, 2020

  • Type

    Employment

  • Sub Type

    Other Employment

  • Judge Elaine Lu
  • County

    Los Angeles County, CA

JOHN ROESSLER V. SYNECTIC SYSTEMS, INC., ET AL.

In any event, “trial courts are authorized to consider late-filed opposition papers for good cause if there is no undue prejudice to the moving party.” Id. There is no prejudice here as defendants had an opportunity to file a reply, something that is not contemplated in CCP §§ 1290, et seq. The court will consider plaintiff’s opposition and defendants’ reply. 2. Compelling Arbitration: Defendants petition to compel arbitration under California law.

  • Hearing

    Nov 16, 2020

CORINA V. HACKNEY

Thus, the Court exercises its discretion and will consider Plaintiff’s late filed Opposition. Defendant’s objection to the late Opposition is overruled. Under applicable law, individual defendants are served by delivering copies of the summons and complaint to them personally or to someone else authorized by law to accept summons on their behalf. (CCP § 415.10 et seq.)

  • Hearing

    Nov 16, 2020

ESTHERN BAHK VS KIA MOTORS AMERICA INC

Late-Filed Reply The court will not consider Plaintiff’s unauthorized, late-filed 10-page reply. Plaintiff had ample time before the initial 10/1/2020 to file a timely reply. Plaintiff’s doing so on the day that Plaintiff’s supplemental brief was also due appears to be an unauthorized attempt to circumvent the court’s 5-page limit on limited issues the court last raised. It was not a permission to file a reply. B.

  • Hearing

    Nov 13, 2020

LIGHVANI VS GARDEN COMMUNITIES INC

Thus, even if the Court were to consider the late-filed declaration as an opposition to the motions, it provides no authority for denying the motions. Discussion Plaintiff has provided no authority for denying the motions nor has plaintiff shown that she acted with substantial justification or that there are other circumstances making the imposition of sanctions unjust.

  • Hearing

    Nov 12, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    other

LIGHVANI VS GARDEN COMMUNITIES INC

Thus, even if the Court were to consider the late-filed declaration as an opposition to the motions, it provides no authority for denying the motions. Discussion Plaintiff has provided no authority for denying the motions nor has plaintiff shown that she acted with substantial justification or that there are other circumstances making the imposition of sanctions unjust.

  • Hearing

    Nov 12, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    other

ANJELA RAMOS VS PAMELA TIERNEY, AN INDIVIDUAL AND AS TRUSTEE OF THE HUBBA BUBBA TRUST

Late-Filed Opposition As Defendant notes, Plaintiff’s opposition was filed late, on November 2, 2020, when it was due to be filed and served by October 29, 2020. Given that Defendant was able to file a substantive reply to the opposition, albeit a day late, the Court will exercise its discretion to consider the late-filed opposition.

  • Hearing

    Nov 12, 2020

(NO CASE NAME AVAILABLE)

Late-Filed Opposition As Defendant notes, Plaintiff’s opposition was filed late, on November 2, 2020, when it was due to be filed and served by October 29, 2020. Given that Defendant was able to file a substantive reply to the opposition, albeit a day late, the Court will exercise its discretion to consider the late-filed opposition.

  • Hearing

    Nov 12, 2020

GLORIA WEISCHADLE VS LAW OFFICES OF ROBERT CHARBONEAU, ET AL.

California Rules of Court Rule 3.113(g) provides that “[a] memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.” In turn, the Court, in its discretion, may refuse to consider a late filed paper. (CRC Rule 3.1300(d).) Although Defendant argues that the Court should exercise its discretion and refuse to consider the Opposition, Defendant has filed a Reply on the merits.

  • Hearing

    Nov 10, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

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