Family Court cases are often a back and forth of “He said, She said.” The natural reaction, when confronted with a declaration by the opposing party, is to want to respond to set the record straight. This would lead to a neverending ping-pong of declarations–if not for the California Code of Civil Procedure.
If you look up CCP §1005(b), you will see the deadlines for the filing of declarations, and the types of declarations the Court will typically accept. They include:
Moving and supporting papers (i.e. the initial Request For Order)
These must be filed/served at least 16 court days before the hearing on which the request is to be heard. They are limited to 10 pages in length pursuant to California Rules of Court (C.R.C.) 5.118(a). This includes exhibits!
These must be filed/served at least 9 court days before the hearing. Per CRC 5.118(a), they can also be 10 pages in length.
These must be filed/served at least 5 court days before the hearing. CRC 5.118(a) says they can be 5 pages in length.
This means that any dialogue before the hearing is limited to just three declarations.
Now, it used to be that San Diego local rules (and those of other counties) allowed a reply to a Reply Declaration. This was called the “Sur-Reply.” Up through 2011, San Diego Local Rule 5.5.3. allowed Sur-Replies to be filed and served up to two days before the hearing by 10:00 a.m. Local Rules also allowed “Supplemental Declarations,” which had a 5-day deadline, like Reply Declarations, and to which replies could be filed and served two says before the hearing by 10:00 a.m., like Sur-Replies. (Note: Since the CRC and CCP were silent on Sur-Replies and Supplemental Declarations, there was no statutory page limit!)
As of 2012, San Diego Local Rule 5.5.3 doesn’t exist. It has been deleted. The reason why is probably the 2011 case, LINDA RUTTLEN v. COUNTY OF LOS ANGELES, in which the Court stated:
“…There is no provision for surreply papers.
The trial court, of course, has the inherent authority and discretion to permit the parties to file additional briefs if the trial court deems that additional briefing would be helpful. But there is nothing in the Code of Civil Procedure that gives the parties the right to file papers of any kind regarding a motion after the reply papers have been filed.”
Still, you can take your chances. It is within the Court’s discretion to admit late-filed declarations, pursuant to CRC 3.1300(d), but it’s not a sure thing. Which means that, instead of filing a Sur-Reply or a Supplemental Declaration, you should probably bring up the new facts in Court at the hearing.
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