JUST BECAUSE IT’S ON PLEADING PAPER DOESN’T MEAN IT’S A PLEADING

PLEADINGS:

Documents that are crafted on pleading paper are typically filed under one of two folders. Either they truly are a “pleading” or they are considered “discovery.” While most discovery documents are drafted on pleading paper, some discovery is not. Similarly, most pleadings are on pleading paper, some are not. More about that later.

Pleadings are typically documents that are filed with the court. If you have a court endorsed/conformed document (stamped by the court in the upper right corner of the document), this is a pleading (see EX. 1). Some pleadings are drafted on Judicial Council forms, indicated in the lower left corner of the document (see EX. 2). These are pre-typed forms, approved by the Judicial Council. One example is a “form complaint”. It’s filed with the court, but it is not on pleading paper.

Note: Complaints are accompanied by a Summons and a Civil Case Cover Sheet; all pleadings.

Motions are considered pleadings. However, best practice is to separate your motion documents from other pleadings in a file and create a separate Motions folder within the pleadings folders. Motions are simply one party making a request of the court. For example, a Motion for Summary Judgment and/or Adjudication is a “dispositive motion”. Meaning, the defendants or cross-defendants are asking the court to dismiss all or part of an action based on merit of the case, without trial.

A party that files the initial papers making a request of the court is called the “moving party” and the initial papers that are filed are the “moving papers”.   Opposing counsel will have an opportunity to rebut the arguments in the moving papers and will file an Opposition. After the Opposition is filed, the moving party will have an opportunity to file a Reply.

Motion papers (moving) will likely include some or all of the following (depending on the Motion):

  • Notice of Motion and Motion for XX
  • Memorandum of Points and Authorities
  • Separate Statement of Material Facts
  • Declaration in Support of Motion
  • Request for Judicial Notice/Compendium of Exhibits
  • Proposed Order

Oppositions will likely include:

  • Opposition to X’s Motion for XX
  • Separate Statement of Material Facts
  • Declaration in Support of Motion
  • Response to Separate Statement of Material Facts

The Reply will be smaller and likely include:

  • Reply to XY’s Opposition for Motion
  • Declaration

When filing the motion, opposition and reply papers, it is best practice to file them according to the above order. This order is typically the order an attorney will want them in when (s)he brings them to the hearing.

Other motions include Motions to Compel. These may be submitted because one party wants to compel further discovery responses or an appearance at deposition.

Overall, there are many motions and reasons why a party files a motion. The above list is far from comprehensive, however, they are a few of the most common motions in civil litigation.

DISCOVERY:

To understand Discovery is to simply understand the term “discover”.  The discovery phase of litigation is a fact finding mission. It is a way for the parties to ascertain the facts of the case (eg.: injuries, version of events, witness testimony, etc.).

Therefore, any document with the below titles are considered Discovery and should be filed accordingly:

  • Interrogatories;
  • Request for Production of Documents;
  • Requests for Admissions;
  • Notice of Depositions;
  • Subpoena for Appearance at Depositions (Judicial Council Form)
  • Subpoena duces Tecum (records only subpoena-Judicial Council Form).
  • Demand for Medical Examination; and
  • Responses and/or Objections to any of the above.

Keep in mind a Motion to Compel Discovery is still a Motion first; and thusly, filed in pleadings.

Specialized area of civil litigation such as Construction Defect/Mass Tort will have documents specific to the niche area of law. For example, a Notice of Document Deposit will be filed in discovery.

In summary, determining whether a document is a pleading or discovery, ask yourself the following:

  1. Has the document been filed with the court? (pleadings)
  2. Will the document be filed with the court? (we receive documents that do not have the court stamp-but are pending court filing, eg,: Motions) (pleadings)
  3. Is the document on a “fact finding mission”? (discovery)

 

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