Sometimes cases are worth mentioning not because they're particularly interesting, but rather simply because they might be helpful to the reader.
Which is why I mention this one.
The relevant part of the holding is a simple one: You're allowed to incorporate by reference prior motions and supporting evidence. That's something that attorneys do somewhat routinely, and yet, other attorneys prefer to be on the safe side and refile the entire shebang.
Good to know that you have a choice.
As Justice Dato explains:
"Rule 3.1110(d) states that "[a]ny paper previously filed must be referred to by
date of execution and title." Rule 3.1113 provides rules for the memorandum in support
of the motion, and rule 3.1113(j) states that "[t]o the extent practicable, all supporting
memorandums and declarations must be attached to the notice of motion." Consistent
with these rules, a litigant may incorporate previously filed documents and, where
practicable, should file them with the motion. But a litigant is not required to do so
absent a rule precluding incorporation by reference. (Cf. rule 3.1345(a) & (c) [requiring
separate statement for certain discovery motions and stating "[m]aterial must not be
incorporated into the separate statement by reference"].) . . . .
Code of
Civil Procedure section 437c now expressly contemplates incorporation by reference in
summary judgment papers. (Code Civ. Proc. § 437c, subd. (b)(7).) We see no reason
why incorporation by reference would be any less appropriate for a fee motion. . . . .
Refiling materials to support fee motions may be typical, and even prudent, but it
is not required. Denied motions are part of the record. And even assuming record size
imposes an additional burden, to aid the court Plikaytis did provide courtesy copies. At a
minimum, if the court felt Plikaytis's efforts were insufficient to rely on incorporation by
reference, it could have permitted her to refile the documents. Simply refusing to review
the materials was an abuse of discretion."
So there you have it. The rule. As well as some practical advice from the Court of Appeal about that same rule.
