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Attorney & Mediator
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CALIFORNIA FAM LAW: I am seeking some way to have the court

Resolved Question:

CALIFORNIA FAM LAW:
I am seeking some way to have the court reconsider, or retrial, or dismiss a fraudulent domestic violence RO- and to know the time frame allowed from date it was granted or entered defendant can file.
Can a defendant ( or is it only a plaintiff) file a motion to vacate a ruling or judgment after DV RO granted?

I guess my question better stated- once RO is granted, is there any process, and what is the process , the motion called, to have the court re address the circumstances and evidence-

I have researched some forms and it seems this: Civil Rule 60(b)(4): Fraud, misrepresentation or other misconduct of an adverse party- may apply?

In this case the plaintiff has consistently misrepresented and lied to the court in order to "legally" harass innocent defendant.
How much time, 30 days 60 days 90 days? from the date of decree or granting of DV RO is allowed to file a motion to vacate?

Thank you in advance
Submitted: 3 years ago.
Category: Family Law
Expert:  Attorney & Mediator replied 3 years ago.
1) Motion to vacate only applies when you have actual evidence (other than your words) of incompetency, fraud, duress, undue influence, etc... Restraining Orders are typically not vacated by the judge.

2) Instead a motion for reconsideration can be done if you have evidence not previously considered by the court which can affect the outcome of the judgment.

3) You also have the option to do an appeal but this is only based on evidence where the judge failed to apply the law of the family code (starting at section 6300 for restraining orders in California).

All of these have a period of 30 to 60 days after the judgment is rendered to be done. It might be shorter or longer depending on the county where the restraining order was granted so you need to ask the local court clerk if it is not 30 days for your county.





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_______________________________________________

Please Note: JustAnswer.com is a public forum. JustAnswer.com is not a law firm. JustAnswer.com is only a question and answer site. Asking a question does not create an attorney-client relationship nor is your question protected under the attorney-client privilege. An attorney-client relationship is established when you enter into written contract for representation and pay a retainer directly with the attorney or attorney’s firm.

JustAnswer.com uses the term “Expert”. I do not hold myself as an expert when I answer your questions. The information given by me is not legal advice. I am not establishing an attorney-client relationship with you. I am providing only research, resources and information only for you to be informed and educated about your particular needs and my answer is limited to the facts presented. You are only paying me for such information given.

My answer or reply is limited to your facts presented and additional information you post may not come in after my reply or answer has posted, if this has occurred please let me know and I will answer further. Due to site tech reasons, oftentimes I am initially only able to see the first part of your post, so this may result in more interactions between us. There might also be a delay in my reply or answers, as I may be helping other customers, or called away from my office or have logged off. Please be assured your question(s) will be answered promptly.

Attorney & Mediator, Lawyer
Category: Family Law
Satisfied Customers: 20012
Experience: Attorney & Certified Mediator
Attorney & Mediator and 6 other Family Law Specialists are ready to help you
Customer: replied 3 years ago.
hi, sorry I thought I did click accept. so I will now. your answer was very helpful in what type of motion to file. so thank you for that.

The situation is I am not receiving an answer from any court clerk, nor self help court people....legal aid, etc. so it remains a mystery - the deadline. How many days after a judgement is entered can one file a motion to reconsider? appears a simple reply would be offered. but not.

I thought this would fall under CA Superior court rules, but am told by a court clerk -no this is not true , every court is different.And she did not know. But I am sure she files them so how could she not know?

The clerk then suggested I call the Victim Witness Protection Program, they would know, she said. I said -do they help people being
victimized by an irrational chaotic system?

The Law Library in the county I live has been permanently closed due to lack of funding.
No one knows and there is no one to ask. Funny! maybe I could just file a motion and no one would even notice the date, nor even know the law?
But I have given up considering a motion is a possibility as quite likely, by now, the deadline has passed...

Thanks a lot for your part of the question, it was clear and concise. hope you have a blissful day:-) and now I will click your accept!
Expert:  Attorney & Mediator replied 3 years ago.
Maybe this will help, I found it in the California Civil codes it provides within 10 days of judgment. The reconsideration must have an affidavit be based on evidence that previously considered.

Quoting:

1008. (a) When an application for an order has been made to a
judge, or to a court, and refused in whole or in part, or granted, or
granted conditionally, or on terms, any party affected by the order
may, within 10 days after service upon the party of written notice of
entry of the order and based upon new or different facts,
circumstances, or law, make application to the same judge or court
that made the order, to reconsider the matter and modify, amend, or
revoke the prior order. The party making the application shall state
by affidavit what application was made before, when and to what
judge, what order or decisions were made, and what new or different
facts, circumstances, or law are claimed to be shown.
(b) A party who originally made an application for an order which
was refused in whole or part, or granted conditionally or on terms,
may make a subsequent application for the same order upon new or
different facts, circumstances, or law, in which case it shall be
shown by affidavit what application was made before, when and to what
judge, what order or decisions were made, and what new or different
facts, circumstances, or law are claimed to be shown. For a failure
to comply with this subdivision, any order made on a subsequent
application may be revoked or set aside on ex parte motion.
(c) If a court at any time determines that there has been a change
of law that warrants it to reconsider a prior order it entered, it
may do so on its own motion and enter a different order.
(d) A violation of this section may be punished as a contempt and
with sanctions as allowed by Section 128.7. In addition, an order
made contrary to this section may be revoked by the judge or
commissioner who made it, or vacated by a judge of the court in which
the action or proceeding is pending.
(e) This section specifies the court's jurisdiction with regard to
applications for reconsideration of its orders and renewals of
previous motions, and applies to all applications to reconsider any
order of a judge or court, or for the renewal of a previous motion,
whether the order deciding the previous matter or motion is interim
or final. No application to reconsider any order or for the renewal
of a previous motion may be considered by any judge or court unless
made according to this section.
(f) For the purposes of this section, an alleged new or different
law shall not include a later enacted statute without a retroactive
application.

In layman's terms you can read it here

Again, the court clerk may have different local rules, but otherwise go by the state rule.



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My answer or reply is limited to your facts presented and additional information you post may not come in after my reply or answer has posted, if this has occurred please let me know and I will answer further. Due to site tech reasons, oftentimes I am initially only able to see the first part of your post, so this may result in more interactions between us. There might also be a delay in my reply or answers, as I may be helping other customers, or called away from my office or have logged off. Please be assured your question(s) will be answered promptly.

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Customer: replied 3 years ago.
thank you for the unexpected reply.
Quoting : 1008. (a) When an application for an order has been made to a
judge, or to a court, and refused in whole or in part, or granted, or
granted conditionally, or on terms, any party affected by the order
may, within 10 days after service upon the party of written notice

Another question no one can answer.
It pertains to a granted Fam Law Domestic Vio restraining order:
The hearing was Oct 29. The ruling only, granting the RO, was received by defendant Dec 6th.
Isn't there suppose to be legal service of the RO that is granted? There has not been any legal service of any such document. The court clerk told me there did not need to be any "service" for family law RO, the ruling was sufficient.
I argued "but it is not an order, it was a ruling stating only the RO was granted, and the ruling does not specify anything nor lenght of time RO is in effect"...
She also said nothing needs to be legally served to a family law RO defendant once ruling was received, copies can be mailed by regular service. Is this correct?
so I ask these questions to see, if perhaps there may still be an opportunity to file for reconsideration or perhaps a motion to dismiss
it all if service was not made?

Expert:  Attorney & Mediator replied 3 years ago.
No, you don't need to be served a ruling. As a courtesy the court clerk can mail it, but they are not required to. As to a domestic violence restraining order, the order does not have to be served if the court granted the exact orders that were requested in the temporary restraining order. Only if the terms are different must it be personally served. A ruling does not have to be served.
Attorney & Mediator, Lawyer
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