Defective motion on its face - does the judge deny, dismiss, or strike it (without hearing the motion)?
posted 3 years ago
I received a motion that fails to establish the facts and elements which are required. I always thought that motions get denied, not dismissed. The motion fails to raise all issues as required, for instance, in child custody cases, the primary consideration is the best interest of the child. His motion is devoid of that issue. If the court would hear it, due process would require the judge to sustain my objection and the judge would find that the motion cannot be heard as written.
My client can't afford the fees and delay involved in having the motion heard; I'd like to set my response or motion to dismiss/deny heard on a motion calendar.
Thus, if the judge were not going to hear the motion for failing to "state a cause of action", does the motion get dismissed? I've seen cases where it indicates that a motion was dismissed, but I've always thought that is not correct. Does the judge deny a motion for being defective, or dismiss. If it were a pleading, there is no question that it would be dismissed.