These general instructions should be used with caution because rules constantly change, and courts often have local rules that require different formatting, the addition of more information in the pleadings, or other variances from these instructions.
Pleadings cannot be filed without first being edited. Some pleadings, such as an informal request for discovery, need only be edited to include the attorney’s name and contact information along with the case name and number, but more complex pleadings, such as a motion to dismiss pursuant to Penal Code §995 must be heavily edited to include case-specific facts prior to filing. If you are a pro per defendant, we strongly advise you to seek advice of counsel prior to filing anything. If you are an attorney, we suggest that you hire us to create a full set of all pleadings from all of our books with your name, bar number, and contact information already in the pleadings.
Pleadings in the pleading packages use search-and-replace terms. Not all terms are in every pleading, but search terms are generally as follows:
|FirstLine||John Doe, Esq. SB#123456|
|SecondLine||Law Office of John Doe|
|AddressLine||1234 L Street|
|AttorneyFor||Attorney for Dave Defendant|
|MotionDate||Date: April 5, 2021|
|MotionTime||Time: 8:30 a.m.|
|ReadyDate||Readiness: June 4, 2021|
|TrialDate||Trial Date: June 14, 2021|
|ExpertExpert||Dr. Jesse De La Cruz|
|xxx||Denotes places requiring case-specific text.|
“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 messenger or paralegal service to serve pleadings. The service 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 below. 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 following chart summarizes notice requirements and recommendations.
|Pleading||Who to Serve||Notice||Notes|
|General Rule||District Attorney||10 days||Rule of Court 4.111; Unless otherwise noted, motions require ten day notice|
|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, Probation||2 days||Commonly known as a Romero, Rule 4.437(a)|
|Statement in Mitigation||District Attorney, Probation||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|
Motions often have very technical rules that are difficult to comply with and vary from court to court. For example, in Kern County, criminal motions are heard on multiple different calendars on different days and times depending on the city, offense level, and whether the motion is brought before, during, or after preliminary hearings. In Bakersfield, misdemeanor motions are heard in Division LM on Tuesday through Thursday at 8:30 a.m., but felony motions are heard Monday through Friday in Department CC. Notice that the courtrooms in Kern County are sometimes Divisions and sometimes Departments. Motions requiring testimony are heard at 10:00 a.m., but other motions are heard at 8:30 a.m., unless it is a motion to continue, and then it is heard in Department One, but only Tuesday through Thursday, unless the motion is heard on the date of Readiness, then it can be heard on a Friday or if the motion is heard on the date of trial, then it can be heard on the Monday trial call calendar. Criminal motions in Delano, which is in the same county, are heard at 10:00 a.m. in Department A on Monday, but if the motion is heard on Thursday, it will be Department B.
Are you confused yet? The rules are so confusing that some attorneys and paralegals even have to check with the court clerks to ensure that they are setting the motion at the right time, on the right day, in the right place.