How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Barrister Your Own Question

Barrister
Barrister, Attorney
Category: Business Law
Satisfied Customers: 22429
Experience:  14 years practicing attorney, MBA
Type Your Business Law Question Here...
Barrister is online now
A new question is answered every 9 seconds

Hi im in Los Angeles..My question is about 6 months ago i

Resolved Question:

Hi im in Los Angeles..My question is about 6 months ago i had an Internet business that i shut down,because i was defrauded and lost money on this venture,long story short, 2 weeks after i shut it down ,i received a summons stating that i was being sued for Infringement . My lawyer answered, in less than 2 days, he was handling it,than he fell ill..6 months later i recieved a "notice of default"..im of course getting another lawyer. At this point can me or my lawyer file a motion to set aside,how much time do i have ,is it 1 year< please advice.
Submitted: 3 years ago.
Category: Business Law
Expert:  Barrister replied 3 years ago.

Hello,

 

Yes, you would have grounds to file a motion to set aside the default judgment. Legally, your lawyer has committed malpractice by missing the deadlines to file any required documents to continue litigating the case. His illness would not absolve him of liability in failing to adequately represent you. Your grounds would be based on inadvertance and excuseable neglect because you relied on your attorney to represent you.

.

There are no set time restrictions on filing the motion as long as you are acting promptly upon receiving notice of the default judgment.

.

California Code of Civil Procedure sections 473(b), 476(d) and 473.5 specify the grounds on which you can base a motion for relief of default or default judgment. Permitted grounds include:

.

Mistake (CCP 473(b)):
A mistake of fact occurs when a person understands the facts to be other than they are. A mistake of law occurs when a person knows the facts as they are, but has a mistaken belief as to the legal consequences of those facts. Ignorance of the law or negligence in researching the law does not constitute excusable mistake, and therefore is not grounds for relief from default.

.

Inadvertence (CCP 473(b)):
Inadvertence stems from a lack of attentiveness, inattention, or fault from negligence
. However, mere inadvertence does not warrant relief unless, on consideration of all the evidence, the inadvertence is excusable. Forgetting about the case or mislaying the summons and complaint are not sufficient grounds for relief. Inadvertence is often combined with excusable neglect.

.

Surprise (CCP 473(b)):
Surprise occurs when a party is placed in an injurious legal situation, through no fault or negligence of his or her own, that ordinary prudence would not have guarded against.

.

Excusable Neglect (CCP 473(b)):
To be excusable, the neglect must have been the act or omission of a reasonably prudent person under the circumstances.Forgetting about the lawsuit, being too busy to properly respond, or being unable to afford an attorney are not grounds for excusable neglect. Examples of excusable neglect include:

  • Illness that disables the party from responding or appearing in court
  • Failure to respond because you relied on your attorney to do so
  • Failure to appear at trial because you relied on misinformation provided by a court officer

.

Party not given "actual notice" in time to defend (CCP 473.5):
If service of the summons did not result in "actual notice" to a party in time to defend their case, the default may be set aside. "Actual notice" means the party genuinely knows of the litigation. Lack of actual notice cannot be caused by the defendant's inexcusable neglect or avoidance of service.

.

Void judgments (CCP 473(d)):
The court may, on its own motion or the motion of either party, set aside any void judgment or order. A judgment or order may be void if the issuing court lacked subject matter jurisdiction over the action, personal jurisdiction over the defendant, if the judgment or order granted relief that the court had no power to grant, or if the judgment was procured by fraud on the court. A common way default judgments are considered void is if the judgment was obtained after improper or fraudulent service, resulting in a lack of personal jurisdiction over the defendant. There are many other ways in which a default judgment may be void.

.

.

thanks

Barrister

 

 

If I have answered your question, PLEASE CLICK THE GREEN "ACCEPT" button NOW, so that I receive credit for my work. Bonuses are optional and greatly appreciated. If you need additional clarification on this question, just click "Reply" and I will be happy to help you. Please give me as much detail as you can so that I can respond after receiving all the relevant details.

Barrister, Attorney
Category: Business Law
Satisfied Customers: 22429
Experience: 14 years practicing attorney, MBA
Barrister and 5 other Business Law Specialists are ready to help you
Customer: replied 3 years ago.
thanks for the advice..
Expert:  Barrister replied 3 years ago.

You are very welcome.

 

The best to you and yours.

 

 

thanks

Barrister

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • Law Pro

    Attorney

    Satisfied Customers:

    1426
    20 years experience in business law - sole proprietor, partnership, and corporations
< Last | Next >
  • http://ww2.justanswer.com/uploads/LA/lawpro/2012-6-25_171315_PT206740s.64x64.jpg Law Pro's Avatar

    Law Pro

    Attorney

    Satisfied Customers:

    1426
    20 years experience in business law - sole proprietor, partnership, and corporations
  • http://ww2.justanswer.com/uploads/DC/DCraneEsq/2012-8-14_14436_DCrane.64x64.jpg MShore Law's Avatar

    MShore Law

    Attorney

    Satisfied Customers:

    1233
    Drafted Negotiated and/or Reviewed Thousands of Commercial Agreements
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    1162
    25 years of experience helping people like you.
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    1142
    Run my own successful business/contract law practice.
  • http://ww2.justanswer.com/uploads/ohioatty/2009-1-22_185545_me.jpg J.Hazelbaker's Avatar

    J.Hazelbaker

    Attorney

    Satisfied Customers:

    393
    Experienced and trained in the area of business law.
  • http://ww2.justanswer.com/uploads/scottymacesq/2009-6-10_221523_small.jpg RGMacEsq's Avatar

    RGMacEsq

    Attorney

    Satisfied Customers:

    393
    Licensed Texas General Practice Attorney
  • http://ww2.justanswer.com/uploads/BA/barristerinky/2012-6-10_22423_office.64x64.jpg Barrister's Avatar

    Barrister

    Attorney

    Satisfied Customers:

    301
    13 years practicing attorney, MBA