Going Through the Motions

By Lynne Prescott, CCLS

When a party needs relief from the court to do something or not do something, or if they want to make the opposing party do or not do something, typically an attorney will “move” the court for such relief by way of a motion. Motions are a part of most practice areas, especially pre-trial motions, but predominantly in civil practice.  The most common types of pre-trial motions you are likely to deal with include:

  • Motion to Dismiss
  • Discovery Motions/Motions to Compel
  • Demurrer
  • Motion to Strike
  • Motion to Quash
  • Motion for Summary Judgment (“MSJ”)
  • Motion for Judgment on the Pleadings (“MJOP”)
  • Motions in Limine

Because a motion is asking the court to do something (or not do something), generally a hearing is required before a judge, papers are filed, oral argument is made before the judge, and the judge renders a decision by issuing an order. A filing fee is required for filing any motion with the court.

Notice of the motion must be provided to all parties in the case, and the California Rules of Court require that the parties “meet and confer” prior to the filing of the motion to see if the parties can resolve the issue first. The basic components of a motion package include: 1) Notice of Motion and Motion (with the hearing date, time, and department included); 2) Memorandum of Points and Authorities in Support of Motion (with table of contents and table of authorities if the memorandum is over 10 pages); 3) Declaration(s) in Support of Motion; 4) Separate Statement of Undisputed Material Facts (for Motion for Summary Judgment); 5) Notice of Lodging of Exhibits (if exhibits exceed 25 pages); 6) Declaration of Good Faith Effort to Meet and Confer/Informally Resolve Dispute; 7) Proposed Order; 8) Proofs of Service; and 9) Filing Fee.

Below is a brief walk through the different types of motions listed above, describing what they do and why they are used.

Motion to Dismiss

A motion to dismiss, which is more commonly known as “throwing out” a case, is requested when one side (usually the defendant) contends that the plaintiff’s claim is not one on which the court can rule. In other words, when a motion to dismiss happens, the moving party is not contesting the facts as presented by the other party, but merely saying that the claim at issue is not a legal one on which the court has any say.

A motion to dismiss is one of the most important motions to understand in U.S. procedural law. The moving party in such a case may concede that the facts of the case are true, but that the case should nonetheless be dismissed because there is no legal issue presented in those facts that the court can rule on. This motion helps ensure that disputes that involve no legal issue do not end up wasting the court’s time and resources. In some cases, there may even be a legal issue at stake, but the statute of limitations has expired, meaning the court can no longer consider the case or render a decision.

Discovery Motions/Motion to Compel

A number of different motions can be used to ensure that both sides are able to handle the discovery process to the best of their abilities. If the other party fails to respond to a request for information, for example, then a motion to compel discovery of that information could force that party to provide a response. Another motion to compel discovery could be used if the party responds to the request for information, but its response is vague or incomplete. Failing to comply with either motion could result in the offending party being held in contempt.


A demurrer is used to tell the court that the allegations in the complaint do not provide legally sufficient reason for the defendant to be sued. A demurrer questions only the legal sufficiency of the allegations, not their truth or the plaintiff’s ability to prove them. In the demurrer, the defendant must state the ways in which the complaint is legally insufficient. The defendant can object to all or just parts of the complaint on various grounds, including: 1) the complaint fails to state a cause of action; 2) the complaint is uncertain or unclear; 3) another case is pending between the parties for the same cause of action; 4) the plaintiff does not have the legal capacity to sue.

Demurrers are treated like motions, as they require a hearing and a judicial ruling on the merits/grounds brought on the demurrer. Also, a meet and confer requirement must be met at least five days before the responsive pleading (demurrer) is due.

If the demurrer is overruled, the defendant must file an answer to the original complaint.  If the demurrer is sustained with leave to amend the complaint, the plaintiff can correct the errors in the complaint, serve the defendant with an amended complaint, and the case will proceed. If the demurrer is sustained without leave to amend the complaint, the case is usually dismissed.

Motion to Strike

A motion to Strike is similar to a demurrer, in that it challenges defects in the complaint. However, the two pleadings challenge different types of defects. A demurrer is used to challenge the legal sufficiency or clarity of the claims. A motion to strike is used to challenge improper or irrelevant information, or complaints not made in conformity with laws, rules, or court orders. Additionally, a demurrer is used only to attack entire causes of action, while a motion to strike can be used to attack portions of a cause of action.

Motion to Quash

A motion to quash service of a summons attacks the method the plaintiff used to serve the summons and complaint. Common grounds for a motion to quash include: 1) defect in the method of serving the summons; 2) defect in the summons itself; 3) failure to name the defendant in the summons; or 4) failure to serve the summons altogether.

A motion to quash based on improper service usually will not dispose of a case permanently. If the plaintiff can properly serve the defendant, the case will proceed.

Motion for Summary Judgment (“MSJ”)/Summary Adjudication (“MSA”)

A motion for summary judgment is intended to either dispose of a case entirely (summary judgment) or to dispose of some but not all of the issues in a case (summary adjudication). This type of motion is used where material facts are undisputed and therefore there would be no need for the judge or a jury to determine the facts.

Motions for summary judgment are governed by the Code of Civil Procedure section 437c.  The moving party must demonstrate to the judge (via sworn statements and documentary evidence) that no material factual issues remain to be tried, e.g., if there is nothing for the court to decide, then the moving party attempts to persuade the court that the undisputed material facts require judgment to be entered in their favor. An MSJ can effectively end a case without it ever going to trial.

It is difficult to prevail on an MSJ; however, there are several benefits to bringing a motion for summary judgment: 1) saves time, expense, and effort of preparing for trial; 2) gets the parties organized for trial; 3) forces the opponent to reveal evidence and theories; 4) forces the moving party to back up everything claimed in the complaint; 5) encourages settlement; 6) avoids prejudice; and 7) can establish law of the case.

Motion for Judgment on the Pleadings (“MJOP”)

A motion for judgment on the pleadings is a party’s request to the court to rule in their favor based on the pleadings on file, without accepting evidence, as when the outcome of the case rests on the court’s interpretation of the law. One of the functions of a motion for judgment on the pleadings is to dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit.

A motion for judgment on the pleadings is the proper procedure when all of the material allegations of fact are admitted in the pleadings and only questions of law remain. When the pleadings do not resolve all factual issues, judgment on the pleadings is generally inappropriate.

Motions in Limine

A motion in limine is a motion filed by a party to a lawsuit which asks the court for an order or ruling limiting or preventing certain evidence from being presented by the other side at the trial of the case. Generally, this motion is filed in advance of the trial, but a motion may be entertained by the court during a trial, before the evidence in question is offered. The purpose of this motion is to prevent the introduction of matters that are irrelevant, inadmissible, or prejudicial. Prior to a trial, the court will hear any proposed motions in limine the parties wish the court to rule on.


When calendaring timelines for motions, remember these three things:

  1. All deadlines for motions in California state courts (except for MSJs) use COURT DAYS.
  2. The ONLY motion that uses CALENDAR DAYS for computing deadlines is a motion for summary judgment.
  3. The best way to remember whether you should count forward or backward when calculating dates for calendaring is that if it involves a HEARING – – COUNT BACKWARDS (excluding the date of the hearing). After all, you cannot calendar something beyond the hearing, correct?

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