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

WILSON & PETTINE LLP V. TIMOTHY DELANEY

The Court has the discretion to refuse to consider late filed papers. 2. Requests that the Opposition filed by Defendant be stricken not be considered by the Court and that in the absence of a timely written opposing papers, Defendant be denied an opportunity to offer oral argument at the time of hearing. Plaintiff argues: 1.

  • Hearing

    Sep 22, 2020

SARAY ROMERO VAZQUEZ ET AL VS HUNTER WAYNE LASSOS ET AL

., Mary Carnes, Robert Jonas, Dan Almquist and Matt Ikemoto OPPOSITION: September 14, 2020 [late filed] REPLY: September 16, 2020 TENTATIVE: Plaintiffs’ motion for leave to amend is granted. Plaintiffs are to file the proposed SAC as a separate pleading within 5 days of this date. Plaintiffs are to give notice.

  • Hearing

    Sep 21, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Auto

SUSANNA KHACHATRYAN VS SALVADOR BAUTISTA

In the late-filed opposition, Plaintiff’s counsel stated that Plaintiff was in Armenia and could not leave because of the COVID crisis. Counsel indicated Plaintiff’s willingness to sit for her deposition. At the hearing on 8/11/20, Plaintiff’s counsel did not appear but defense counsel informed the Court that the parties were working on scheduling Plaintiff’s deposition to be taken from Armenia via Zoom. (Minute order of 8/11/20.)

  • Hearing

    Sep 21, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    other

VINCENT DEROSA, ET AL. VS K9 LOFT INC., ET AL.

Despite any competent proof from plaintiffs concerning K9 Loft’s failure to comply, in the late-filed opposition, defendants concede that K9 Loft also did not comply. (Opp. at 3 [“K9 Loft Inc . . . failed o [sic] provide further responses”].) The Court takes seriously, as should the parties, any party’s violation of the Court’s clear and unambiguous orders concerning discovery. Failure to comply with such orders subject the offending party to sanctions proportional to the violation.

  • Hearing

    Sep 18, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    other

SALVADOR DELGADILLO, ET AL. VS CARLOS P CASIM, ET AL.

However, the court finds Plaintiffs were not prejudiced by the late opposition and exercises its discretion to consider the late filed and served opposition. (CRC 3.1300(d).) Analysis On March 1, 2019, Salvador Delgadillo, by and through his attorney-in-fact Janin Delgadillo, filed a complaint for personal injuries, alleging damages sustained as a result of a preventable fall at the premises maintained by the Defendants. However, Salvador Delgadillo died on April 21, 2020. (RJN, Exh. 1.)

  • Hearing

    Sep 18, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    other

  • Judge

    Paul A. Bacigalupo or Virginia Keeny

  • County

    Los Angeles County, CA

ARANGO VS. SCHLUMBERGER TECHNOLOGY CORPORATION

As an additional note, Defendant’s late-filed opposition was apparently motivated by Arango’s filing and service of a notice of non-opposition. Defendant argues that the motion was electronically served without a valid e-service agreement in place, meaning service was not properly made. Defendant misunderstands the combined operation of Orange County Local Rule 352 and Rule of Court 2.251. Local Rule 352 requires represented parties to electronically file documents.

  • Hearing

    Sep 18, 2020

MICHELLE KIM VS GUIFENG ZHANG, ET AL.

(CRC 3.1300 (stating the court has discretion to refuse to consider a late filed paper); Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.) Thus, demurrer is SUSTAINED without leave to amend. Defendant is ordered to lodge a proposed judgment within 30 days. After hearing, Defendant Kenneth Gross’ special motion to strike plaintiff’s complaint pursuant to CCP § 425.16 is GRANTED.

  • Hearing

    Sep 17, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

MICHELLE KIM VS GUIFENG ZHANG, ET AL.

(CRC 3.1300 (stating the court has discretion to refuse to consider a late filed paper); Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.) Thus, demurrer is SUSTAINED. As there is no opposition, the Court is inclined to deny leave to amend. The court will hear from Plaintiff regarding why she did not amend the complaint pursuant to Defendant’s meet and confer efforts, why she did not file any opposition, and whether any grounds exist for leave to amend. 2.

  • Hearing

    Sep 17, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

MARTINEZ VS YGRENE ENERGY FUND

Nevertheless, even omitting the shutdown days from the count, Plaintiff's amended complaint was late-filed. Here, however, Plaintiff used that time to obtain the advice of counsel.

  • Hearing

    Sep 17, 2020

  • Type

    Other

  • Sub Type

    Intellectual Property

MARGARITA BENITEZ ET AL VS DOES 1 TO 250

Untimely Opposition Plaintiffs’ opposition was seriously late-filed. The court does not consider it, and on the arguments made in the demurrer sustains the demurrer with 30 days leave to amend. Ecolink to give notice. MOTION TO STRIKE Plaintiffs’ opposition was seriously late-file and will not be considered. For the reasons stated in the moving papers, Defendant’s motion is granted with 30 days leave to amend. Ecolink to give notice.

  • Hearing

    Sep 17, 2020

MARTINEZ VS YGRENE ENERGY FUND

Nevertheless, even omitting the shutdown days from the count, Plaintiff's amended complaint was late-filed. Here, however, Plaintiff used that time to obtain the advice of counsel.

  • Hearing

    Sep 17, 2020

  • Type

    Other

  • Sub Type

    Intellectual Property

CENTENO VS TRANSLITE ENTERPRISES INC

Court elects to exercise its discretion to consider the late filed opposition. Kapitanski v. Von’s Grocery Store (1983) 146 Cal. App. 3d 29, 32. A Reply has been filed which addresses the substances of the Opposition.

  • Hearing

    Sep 16, 2020

SYED M. HAMMAD RIZVI, ET AL. VS DILIGENT LENDING, LLC, ET AL.

(CRC 3.1300 (stating the court has discretion to refuse to consider a late filed paper); Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.) However, at the hearing, the Court provided Cross-Complainants an opportunity to explain why they did not oppose or respond to the demurrer. Counsel for Cross-Complainants, Christopher G. Hook, informed the Court that he was not served with the demurrer.

  • Hearing

    Sep 16, 2020

  • Type

    Real Property

  • Sub Type

    other

ELLE BI VS TONY E. LUND

Rules of Court, rule 3.1113(e)), and this longer memorandum must be “considered in the same manner as a late-filed paper” (Cal. Rules of Court, rule 3.1113(g)), which means that the Court has discretion to refuse to consider it (Cal. Rules of Court, rule 3.1300(d)).

  • Hearing

    Sep 16, 2020

CESAR I. GARCIA VS INLAND EMPIRE REAL ESTATE INC., ET AL

Plaintiff late-filed opposition briefs on September 8, 2020, which was only 5 court days prior to the hearing. See Code Civ. Proc. § 1005(b). California Rules of Court, rule 3.1300(d) gives the court the discretion to refuse to consider a late-filed paper. Plaintiff’s counsel Natalie Rastegari (“Rastegari”) attests that the late filing occurred due to a calendaring error.

  • Hearing

    Sep 16, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

SYED M. HAMMAD RIZVI, ET AL. VS DILIGENT LENDING, LLC, ET AL.

(CRC 3.1300 (stating the court has discretion to refuse to consider a late filed paper); Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.) Thus, demurrer is SUSTAINED. As there is no opposition, the court is inclined to deny leave to amend. The court will hear from Cross-Complainants regarding why they did not amend the complaint per Cross-Defendants’ meet and confer efforts, why they did not file any opposition, and whether any grounds exist for leave to amend. 2.

  • Hearing

    Sep 16, 2020

  • Type

    Real Property

  • Sub Type

    other

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, OYB served its response on October 15, 2019, by mail. (Paredes Decl. Ex. A, H.)

  • Hearing

    Sep 15, 2020

  • Judge Elaine Lu
  • County

    Los Angeles County, CA

NORTH AMERICAN TITLE INSURANCE COMPANY VS NAPEAN CAPITAL GROUP, LLC, ET AL.

Late Filed Replies The court did not consider North American Title Company’s late filed replies. Requests for Judicial Notice North American Title Company’s request for judicial notice of the notice of errata filed in this action on May 13, 2020 is GRANTED. Evid. Code §452.

  • Hearing

    Sep 14, 2020

  • Type

    Other

  • Sub Type

    Intellectual Property

EDISON VALENTE, ET AL. VS ESTHER GORDON

[TENTATIVE] RULING: The court CONTINUES the hearing on the motion to set aside default to allow Defendant time to marshal evidence regarding the reasons for her late-filed Answer. Plaintiff is ordered to give notice. Background This case arises in connection with rental units at the property commonly known as 818 7th Street in Santa Monica (the “Subject Property”). Compl. ¶¶ 5-6. Defendant Esther Gordon (“Gordon” or “Defendant”) owns the Subject Property. Compl. ¶ 7.

  • Hearing

    Sep 14, 2020

RHONISHA RICHIE , ET AL. VS LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY

The claims file does not reflect that Plaintiff was provided any written response to her late-filed claim, let alone a response that contains the language mandated by section 911.3, subdivision (a). In the moving papers, LACMTA merely asserts, without any evidence whatsoever, that the claim was returned to Plaintiff as untimely on September 9, 2019. The mere assertion, without evidence, is not sufficient to meet LACMTA’s initial burden on this point.

  • Hearing

    Sep 11, 2020

SHASHIKANT JOGANI VS HARESH JOGANI ET AL

The court declines to consider either of these late-filed documents. Accordingly, Cross-Defendants Haresh Jogani, J.K. Properties, H.K. Realty, Commonwealth Investments, Mooreport Holdings, Akshi Investments, and Gilu Investments filed a Motion For Reconsideration Of Judge Mooney’s Order Granting Cross-Complainants Rajesh Jogani’s And Chetan Jogani’s C.C.P. § 170.6 Challenge is DENIED in its entirety. Counsel for Rajesh Jogani and Chetan Jogani to give notice.

  • Hearing

    Sep 10, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

BERNATZ VS. HAN

(FitzSimmons) (1959) 176 CA2d 67, 72—where superior court clerk improperly refused to enter default, writ issued to prevent court from considering defendant's late-filed motion for change of venue.] By defaulting, defendant is deemed to admit the material allegations of the complaint for purposes of the action. [See Vasey v. California Dance Co., Inc. (1977) 70 CA3d 742, 749; Molen v. Friedman (1998) 64 CA4th 1149, 1156.]

  • Hearing

    Sep 10, 2020

FINANCIAL PACIFIC LEASING, INC., A WASHINGTON CORPORATION VS GOLDEN GREEN GARGO, INC., A CALIFORNIA COROPRATION, ET AL.

The court finds the late-filed unverified responses are equivalent to no responses at all. Therefore, because the responses are untimely, responding party waives objections. (CCP § 2033.280(a).) Defendants provide no explanation regarding its late response. Instead, Defendants argue that Plaintiff failed to meet and confer. However, the court finds Plaintiff has met its meet and confer obligations.

  • Hearing

    Sep 10, 2020

  • Type

    Real Property

  • Sub Type

    Landlord Tenant

  • Judge

    Lori Ann Fournier or Olivia Rosales

  • County

    Los Angeles County, CA

XIAOYU LI VS SINO FAITH, INC., A CALIFORNIA CORPORATION, ET AL.

(CRC 3.1300 (stating the court has discretion to refuse to consider a late filed paper); Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.) Thus, demurrer is SUSTAINED. As there is no opposition, the Court is inclined to deny leave to amend. The Court will hear from Plaintiff regarding why she did not amend the complaint per Defendant’s meet and confer efforts, why she did not file any opposition, and whether any grounds exist for leave to amend.

  • Hearing

    Sep 09, 2020

GILDARDO OMAR ORTEGA, , AN INDIVIDUAL VS JWCH INSTITUTE INC. , A CALIFORNIA CORPORATION;, ET AL.

Late-Filed Opposition Plaintiff argues that the court should disregard Cross-Complainants’ opposition because it was filed on August 27, 2020, rather than August 25, 2020. Cross-Complainants’ counsel testified that the late filing was due to her own calendaring mistake and requests relief under § 473. Given the circumstances, the court will consider the motion on the merits. B. Legal Standard for Demurrer A demurrer for sufficiency tests whether the complaint states a cause of action. Hahn v.

  • Hearing

    Sep 08, 2020

  • Type

    Employment

  • Sub Type

    Wrongful Term

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