OSC’S AND MOTIONS
You need a court order but do not know how to get one.
Learn how to make a motion or OSC to obtain court orders.
OSC’s & Motions— How to Get the Court’s Immediate Attention to Problems
When to use a motion/OSC
Whenever a problem arises in your case that needs the court’s attention before or after trial of the main divorce, a motion or order to show cause (“OSC”) is the way to do this. Whether you need to continue a hearing or obtain documents or try to force your spouse to undergo a drug test, or accomplish a broad range of other things, a motion or OSC is probably the tool you need.
What is a motion
A motion or OSC is a formal, written request to the court. A motion consists of (1) Judicial Council Notice of Motion form (FL-301), (2) Judicial Council Application for Order and Supporting Declaration form (which is often called “Application and Declaration”)(FL-310) and may include a (3) Memorandum of Points and Authorities. A motion or OSC always requires a court hearing.
How does OSC differ from Motion?
An OSC is used when you need an immediately effective order. It requires considerably more forms than a motion. If you need an OSC, contact Attorney Yeamans as (408) 867-8137 to help you prepare those papers. This chapter addresses only motions because they are simpler and amount to the key to the courthouse.
Must you have a Memorandum of Points and Authorities
A Memorandum of Points and Authorities is a brief statement to the court, setting forth the law that applies to your motion and explaining how the law applies to your particular facts. In divorce people may file motions without points and authorities. However, if you are in a hotly contested divorce or have a judge who is new to family law, you had better play it safe and attach a Memorandum of Points and Authorities.
Motions regarding money require an Income and Expense Declaration
Any motion having anything to do with financial matters, including support and attorney fees, must include a completed Income and Expense Declaration (FL-150) or a Financial Statement (simplified) (FL- 155). You must attach a copy of your last two months’ paystubs, so the judge can see your income is documented. You bring copies of most recent income tax returns to the hearing.
If a motion is served personally, it must be given to the other party or his/her attorney at least 16 court days before the hearing. If a motion is served by mail, it must be mailed to the other party or his/her attorney 5 calendar days plus 16 court days before the hearing. You cannot count both the day of mailing/delivery and the date of the hearing in calculating these days. For calendar days, you do count all days, including holidays and weekends. Deadlines are contained in California Code of civil Procedure (“CCP”) section 1005 which you can review at www.leginfo.ca.gov.
Time to respond
The other party, if they wish to oppose the motion or any part of it, must file and serve a formal, written responsive declaration (FL-320) at least nine full court days before the hearing. To calculate these days, you count only days on which the court is open, not weekends or holidays. If the responsive declaration is served by mail, this must be done five full court days plus five calendar days before the hearing. You must also FAX or otherwise deliver the responsive declaration to your opponent and/or their counsel on the first business day after you file the papers.
Reply by moving party
A person making a motion can file and serve a written reply five court days before the hearing. Serving a reply by mail is probably not possible, and you must deliver it to your opponent and/or their counsel by the next business day after you file your papers. The reply is for the purpose of counteracting the responsive declaration, not for bringing up things you just left out of your motion. Although state law okays a reply, there is no Judicial Council form for it. You must type up your reply on 28-line paper (a sample of which you can find on line).
Procedure for making a Motion
You prepare your motion and check with the clerk of the court to find out what date, time and department should go on the motion. Some counties require that you clear the time and date with opposing counsel before filing the motion, and if your local rules require that, you must call opposing counsel to make sure the date is one where he/she is not on vacation or in another court or deposition. If opposing counsel refuses to tell you what dates are okay and merely hassles you, you will use a declaration to inform the court of the problem and get a date without cooperation from opposing counsel. Once you are sure of your time, date and department, you complete the motion and file it and pay the filing fee.
Proof of service by mail
If your motion is being made after the other party has filed any paper with the court in the divorce, you may serve your motion by mail, and you use a proof of service by mail (FL-335) to prove the papers were delivered to your opponent. This form is extremely important. If it is not properly filled out and filed, when you go to court, the court may kick you out and refuse to hear your matter, and you will have to start your motion all over. There are two ways to do the proof of service by mail. Whenever you serve papers by mail, the proof of service by mail must be mailed along with the papers; this is not necessary for personally delivered papers.
Checklist of what to file with court
- Notice of Motion form (FL-301)
- Application and Declaration form (FL-310)
- Proof of service by mail form (FL-335)
- Declarations by witnesses (optional) (MC-030)
- Memorandum of Points and Authorities (optional, typed, not form)
- Check or cash for filing fee
Some courts require all proof to be contained in your Application and Declaration, and they do not permit verbal testimony at the hearing. For those courts, the information in your Application and Declaration will necessarily be more detailed, and you need to attach declarations signed by any witnesses you have, not just your own declaration.
Whatever your particular court’s procedure is, you should check your local family rules regarding motions, and you should go to the court, preferably before you write your motion, and see a family law- and-motion calendar. In preparing for your hearing, you should type everything you want to say to the court and bring it to the hearing so you will not forget things. Also, if the judge cuts off your presentation, you can request to be permitted to file the proof you were going to offer, or to mark it as an exhibit.
Bring your proof of service by mail with you to the hearing.
Evidence at Hearing
Law and State Rules permit the judge to insist that all evidence be in your written papers and to refuse to permit oral testimony:
Rule 3.1306. Evidence at hearing
(a) Restrictions on oral testimony
Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.
(b) Request to present oral testimony
A party seeking permission to introduce oral evidence, except for oral evidence in rebuttal to oral evidence presented by the other party, must file, no later than three court days before the hearing, a written statement stating the nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the hearing. When the statement is filed less than five court days before the hearing, the filing party must serve a copy on the other parties in a manner to assure delivery to the other parties no later than two days before the hearing. . . . .
Use your Application and Declaration as a checklist in court
After the hearing of your motion, the only orders you get are the ones that the judge explicitly adopted at the hearing. If you asked for something very reasonable in your motion, but it got lost in the shuffle at the hearing, and the judge did not say anything about that particular request, you do not have an order for it. Therefore, while you are at the hearing and it is ending, quickly scan your Application and Declaration to be sure that you have verbally asked the judge and presented evidence on every single request, and the judge has made an order on every request. When the judge pronounces the decision, if any requested orders are not mentioned, you need respectfully to remind the judge that you requested such an order, and you would like a decision on it.
You prepare Findings and Order After Hearing (FL-340) Most people assume that the judge will write up the order after deciding your motion, but this is not correct. You have to do all the paperwork for your own case, including writing the order.
Sometimes you can prepare the order in advance
Ideally, if you could predict the outcome of the case accurately enough, or if the issues were simple enough, you could take a filled-out, typed Findings and Order After Hearing (“Order After Hearing”) with you to the court hearing of your motion and have the judge sign it at the hearing immediately upon making the order. This is usually not possible. But if you think your spouse many not show up at the hearing or may not successfully oppose your requests, it is a good idea to bring the typed Order After Hearing to the hearing, and hand it to the judge at the end of the hearing for signature.
Prepare the Order After Hearing
If a hearing with evidence is required as to some or all issues, the court’s decision will be announced either verbally at the time of the hearing or later in writing (if the matter is “taken under submission” to be decided later). Once the parties know the court’s decision, it is the responsibility of the parties (or their lawyers, if they have lawyers) to fill out the Findings and Order After Hearing form (which is called “Order After Hearing” and, if you have restraining orders, the CLETS order as well. If support is to be paid by wage assignment, you also prepare that order
Opponent signs order before it is submitted to judge
Although local rules may be more detailed, State Rules set up a procedure for signing of the Order After
Rule 3.1312. Preparation of order
(a) Prevailing party to prepare
Unless the parties waive notice or the court orders otherwise, the party prevailing on any motion must, within five days of the ruling, mail or deliver a proposed order to the other party for approval as conforming to the court’s order. Within five days after the mailing or delivery, the other party must notify the prevailing party as to whether or not the proposed order is so approved. The opposing party must state any reasons for disapproval. Failure to notify the prevailing party within the time required shall be deemed an approval. Code of Civil Procedure section 1013, relating to service of papers by mail, does not apply to this rule.
(b) Submission of proposed order to court
The prevailing party must, upon expiration of the five-day period provided for approval, promptly transmit the proposed order to the court together with a summary of any responses of the other parties or a statement that no responses were received.
(c) Failure of prevailing party to prepare form
If the prevailing party fails to prepare and submit a proposed order as required by (a) and (b) above, any other party may do so.
(d) Motion unopposed
This rule does not apply if the motion was unopposed and a proposed order was submitted with the moving papers, unless otherwise ordered by the court.
One party prepares the Order After Hearing and puts his/her address and phone number at the top. This should be done promptly within five days after the hearing. The proposed original Order After Hearing is by that time mailed to the opponent (or his/her lawyer) with a letter requesting that they sign it and return it within two weeks of the date of the letter. If the Order After Hearing as written correctly states the judge’s decision, it must be signed by the other party, even if the party does not agree with the decision. If a party does not like the judge’s decision, that is not a reason to refuse to sign the order, although it may be a reason to appeal or to take other steps legally to challenge the decision. If your spouse did not attend the hearing, you do not submit the proposed order to him/her for signature; just submit it to the judge.
Prepare to obtain transcript or video
At the end of your hearing, if you think that your spouse or his/her lawyer is going to fight over the wording of the order, either obtain a video of the hearing, or get the court reporter’s business card and order a transcript. If you are in a horrible contest where everyone fights over every single word, go up to the court reporter at the end of the calendar and order a transcript immediately and get their business card or name and phone number so you can follow up. You pay for the transcript and for the video, which for a short hearing will cost from $25 to $150. Longer hearings, of course, cost more. If your hearing is videotaped, the video may be available immediately after the hearing, so you want to bring money with you to court for that purpose. It is much easier to buy the video or arrange for a transcript immediately after the hearing instead of trying to locate the court reporter later.
How to resolve disputes about the order’s wording
If there is a dispute as to the correctness of the order, that is, a dispute as to whether the order correctly reflects what the judge decided, each party needs to prepare his/her own version of the order and to explain his/her position to the other in writing. Of course, everyone keeps copies of his/her letters. If that does not resolve the matter, a transcript may be ordered from the court reporter to establish exactly what the judge ordered. To contact the court reporter, you phone the courtroom where the case was heard or the court executive. If the court reporter is not available, you ask the clerk how to locate the reporter. You can sometimes order a “partial” transcript, containing only the ruling of the judge rather than the testimony of all parties, and this will be cheaper than a complete transcript of all the evidence, but you do not do this if you had a videotaped hearing, only if there was a person using a steno-type machine to record the proceedings.
If the parties disagree, judge will decide wording of order
Sometimes, even with a transcript, the parties cannot agree on the wording of the order. In that event either party can make a request to have the order signed by the judge. Usually this can be done by sending the judge a letter explaining the problem, and including copies of all transcripts (including videotape) and correspondence from the opposing party or attorney as well and including copies to sign and a stamped, return envelope. Sometimes a hearing is necessary for this, and a written motion could even be necessary. First you send the judge a letter containing all proposed orders and all correspondence about the order, and then if the judge wants a hearing or a written motion, he/she will let you know this. Of course, you send the other party copies of everything you send to the judge at the same time as you send it to the judge.
What goes into the order
All the orders the judge announced at the hearing go into the order—and nothing more. Sometimes people talk after the hearing and want to add to the order. This is a very bad idea. If you reach separate agreements, put them into a written stipulation. They should not go into an order for a hearing unless the judge pronounced them.
Undue delay in obtaining an order after hearing should not be tolerated
Particularly if you have an attorney, there is no valid reason that it should take months and months to obtain an order after a hearing. Even if the other side is completely unreasonable, your attorney can use the process described above to obtain an order without the other party’s cooperation. The only valid excuse for delay, other than medical or personal problems, is that a court reporter may take a long time in getting a transcript prepared. If this occurs, you or your attorney must keep contacting the court reporter to ensure that the transcript gets done.
Filing the order
Once the judge signs the original Order After Hearing, you make copies of the order, and take the original order to the clerk of the court for filing. You file the original, and have the copies stamped endorsed to show they were filed. You must mail a copy of the order to the other party (or his/her attorney). If you have a CLETS restraining order against domestic violence, you take a copy of the filed CLETS order to the police. When you are filing your order, ask the clerk if you should obtain a certified copy for the police, as they should know.
When you need to serve the order
If the other party was not present when the decision was announced, or if the decision was sent by mail, in order to enforce the Order After Hearing, you need to have it personally served on the other party, just as you had the Summons and other papers served at the beginning of the divorce. If the party will comply with the order, you usually don’t have to worry about service, but if he or she is going to violate the order, you need personal service. If you’re not sure if they’ll obey the order, serve it. Proof of service by mail is insufficient in this situation. You need to prepare a proof of personal service. You then arrange service and you then file the signed proof of service with the clerk of the court (of course, keeping an endorsed copy for yourself). Then you will have no trouble later proving that the other party knew about the order.