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Barrister
Barrister, Attorney
Category: Business Law
Satisfied Customers: 36178
Experience:  16 years practicing attorney, JD, BA, MBA
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Hi im in Los Angeles..My question is about 6 months ago i

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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.

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.

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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.

.

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thanks

Barrister

 

 

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Customer: replied 6 years ago.
thanks for the advice..

You are very welcome.

 

The best to you and yours.

 

 

thanks

Barrister

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