I. Motions before trial

1.      Introduction

A motion is a request that the court issue an order.  Motions before trial are those motions that make requests in preparation for trial.  These motions are generally not heard by the judge who will preside over trial; instead, they are heard by a motions judge.  Common motions, in roughly order of use, include:

  1. Continuance – a request for more time to prepare for trial.
  2. Discovery – a request that the Prosecution be ordered to give you evidence concerning your case.
  3. Bail – a request that the court set bail or reduce bail to a reasonable level so that the defendant can post bail.
  4. Lineup – a request that a witness view defendant as part of a lineup.
  5. Suppress – a request that the court rule that evidence seized from you cannot be used against you at trial.
  6. Set Aside the Information – a request that the court rule that the evidence presented at the preliminary hearing was insufficient to lead a person to believe that a crime was committed and that it was defendant who committed it.
  7. Recall Warrant – request that the court recall an arrest warrant and set the case for further hearings.
  8. Pitchess – a request that the court look in the personnel files of the officers involved in the prosecution to see if they have previously been accused of any misconduct that could be used against them at trial.
  9. Withdraw Plea – a request that the court allow a defendant to withdraw his plea of guilty or no contest and enter a not guilty plea.
  10. Prohibit Restrictions on Right to Counsel – a request that the court grant defendant free, unmonitored phone calls to his attorney.
  11. Traverse – a request that the court first determine that the officer obtaining a search warrant misled the judge when obtaining the warrant and, second, rule that the evidence seized under the warrant cannot be used against you at trial.
  12. Disclose Informant – a request that the court provide the defendant with the name and contact information for a confidential informant who gave law enforcement information concerning the case against defendant.
  13. Unseal Affidavit (Hitch Motion) – a request that the court open the affidavit that was used to obtain a search warrant and give the defendant a copy of the affidavit.
  14. Enforce Agreement – a request that the court order the prosecution to abide by the terms of any agreements.
  15. Motion for Sanctions (Trombetta Motion) – a request that the court punish the prosecution for losing valuable evidence.
  16. Dismiss for Speedy Trial Violation (Serna) – a request that the case be dismissed because trial, preliminary hearing, or other required proceedings were not held within the statutory time period.
  17. Dismiss for Delay in Prosecution – a request that the case be dismissed because there has been undue delay in the prosecution.
  18. Motion to Set Motions Date – some courts have a set date for hearing of motions and motions will only be heard on that date.  This is a request that the court set a date for hearing of motions.
  19. Joinder – a request that the court consider that pleadings filed by a codefendant also be applied to defendant.
  20. Marsden Motion – a request that the court replace defendant’s attorney with a different attorney.

2.     Notice requirements

“Notice” simply means providing a copy of a motion to other interested parties.  In most cases, this means giving a copy of your motion to the district attorney, but some motions must also be served on the probation department, a law enforcement agency, the city attorney, county counsel, or someone else.

Generally, a defendant cannot serve his own pleadings, and most law firms use a service, such as Attorney Messenger Service (661-324-8018), to serve pleadings.  AMS picks up pleadings from the law firm, serves all required parties, files the pleadings with the court, and then returns endorsed copies to the law firm.

Service of motions on counsel for codefendants is technically not required for most motions, but local rules often require service on counsel for codefendants, so it is generally the best practice to always serve each attorney for each codefendant.  It is easier to serve a motion on extra people than it is to enforce technical rules, so non-essential parties are shown in the chart.  Service times refer to personal service, but the court may require an additional five days if service is by mail.  The number of days refers to court days – days the court is in session.

The chart on the following page summarizes notice requirements and recommendations.

Motion Who to Serve Notice Notes
General Rule District Attorney 10 days Rule of Court 4.111;

Unless otherwise noted, motions require ten day notice

Pitchess (Discover Personnel Files) District Attorney,

Police Agency, and

Agency’s Attorney

16 days Code of Civil Procedure §1005(b), Service on DA is not technically required, but clerks may insist.
Suppress Evidence District Attorney 10 days Penal Code §1538.5

Time is reduced to five days if the motion is brought before preliminary hearing.

Ex Parte None None Applies to few motions – mostly requests for funds.
Continuance District Attorney 2 days Also serve the probation department if motion is brought after conviction
Expunge Conviction District Attorney,

Probation Department

15 days Penal Code §1203.4
Declare Defendant Incompetent District Attorney None Penal Code §1367 or 1368
Withdraw Plea District Attorney, Probation Department 10 days Penal Code §1018. Some courts do not require advance notice, but best practice is to serve and file at least ten day before hearing.
Substitute Attorney District Attorney, Prior Attorney None Best practice is to file at least 2 days before hearing.
Strike Prior Convictions District Attorney,


2 days Commonly known as a Romero, Rule 4.437(a)
Statement in Mitigation District Attorney,


4 days Rule 4.437(a)
Return Property District Attorney, the agency holding the property 3 days Code of Civil Procedure §1201.5
Substitute Attorney District Attorney None Best to give two days’ notice