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socrateaser
socrateaser, Attorney
Category: Business Law
Satisfied Customers: 38128
Experience:  Retired (mostly)
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During what part of the hearing on the Motion to Strike, if

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During what part of the hearing on the Motion to Strike, if any, should I expect to be offered the opportunity to speak, or be asked to speak?

If the motion is granted, may I file FL-165, Request to Enter Default, immediately and, if so, are there other forms that should also be filed immediately?

Tahnk you!
It's your motion, so as soon as you are called to the bar, you say something like, "Good morning, your honor, John Doe, Petitioner, appearing pro se." The judge will probably acknowledge you and say something like, "I see you have a motion to strike here." Then you just start your presentation, e.g., "Your honor, Respondent has filed an untimely Response to my Petition for dissolution of marriage. I believe that Respondent's filing does not operate as a general appearance sufficient to overcome my right to a default in this matter, because...blah, blah blah...."

If the judge decides in your favor (and, he/she probably will take the matter into chambers and not make an immediate ruling, because you are effectively asking the court to hold that a Judicial Council Rule of Court is in violation of an express Section of the Family Code. Judges are reluctant to get into this sort of issue, without a great deal of consideration. So, I doubt that the issue of taking an immediate default will arise. But, if for some reason it does, you can ask the court to enter an immediate default, without your having to prepare an Orders after Hearing form, since the Respondent has not as a matter of law appeared, and so there is no one else to notify about the court's ruling.

Hope this helps.
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Customer: replied 3 years ago.

OK, as long as I'm not penalized in any way for not filing an FL-165 that day


 


How long should I expect to wait before receiving an answer, and should I bring a partially completed Orders after Hearing form?

Customer: replied 3 years ago.

OK, as long as I'm not penalized in any way for not filing an FL-165 that day


 


 


 


How long should I expect to wait before receiving an answer, and should I bring a partially completed Orders after Hearing form?

You won't be penalized.

You can fill out an Orders after Hearing. Nothing to lose. I suspect that the judge will trail/continue the hearing for a week, while he/she tries to make sense of your motion. We shall see what happens.

Best of luck!
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Customer: replied 3 years ago.

Respondent "appeared" by way of telephone, the commissioner putting her on speaker phone...Motion denied, the offense was too trivial to warrant such a punishment...Interestingly, I was told I had "unclean hands" because FL-141 hadn't been filed, when in fact it had so apparently has been lost...now I have to wait for the file to be returned to see what else might not be there

Pure invention on the judge's part, in my opinion. This isn't question of judicial discretion. It's a question of statutory construction. The court either has jurisdiction or it doesn't.

As far as an appearance for purposes of accepting personal jurisdiction by telephone, that's ridiculous. How do you or the court know that the person on the phone is, in fact, the respondent? It doesn't. The respondent did not appear, because there is no evidence in the record of her appearance.

The inventive capacity of a family court judge never ceases to amaze me. Well, you could file a petition for a writ of mandate from the Court of Appeals, but it's probably not worth the hassle.

Onward and upward.
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