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CalAttorney2
CalAttorney2, Attorney
Category: Landlord-Tenant
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney with experience representing both landlords and tenants in residential and commercial property disputes.
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1) In an Unlawful Detainer case in California, how do I have

Customer Question

1) In an Unlawful Detainer case in California, how long do I have to file a motion to vacate a summary judgement and is it from the date judgement is entered or date notice of judgement was filed?
8/30/2016 Notice of Entry of Judgment Filed
8/23/2016 Judgment Entered
2) Can the motion be "heard", i.e. on calendar/heard by judge, if filed within that time or does it also have to be heard before that time?
3) What is the time to notify the other side of the motion being on calendar (believe this differs inUD case)?
Submitted: 9 months ago.
Category: Landlord-Tenant
Expert:  CalAttorney2 replied 9 months ago.

Hello, My name is ***** ***** I will assist you today. Please give me a few minutes to write a response and identify any additional resources for you.

Customer: replied 9 months ago.
Ok great, thanks.
Expert:  CalAttorney2 replied 9 months ago.

UD actions can have a motion to vacate filed - while there is no special statute that gives a shorter notice (so the general 6 month statute still applies), the nature of an eviction proceeding dictates that a UD tenant will need to file an "ex parte" motion to have any effect (meaning they must file the motion on 24 hours notice and appear in court the same day the motion is filed in order to actually stop a writ of eviction - they cannot wait for a noticed hearing).

If judgment in this case was entered a month ago, I would be surprised if the sheriff has not already enforced the writ of eviction - if the sheriff has not done so, the tenant seeking to set aside the judgment would be well advised to file their ex parte motion immediately.

Customer: replied 9 months ago.
The eviction has been stayed until mid October but would like to have the motion for Summary Judgement vacated (& have trial ultimately). I've heard 30 days to file motion to vacate and 60 days to appeal in a UD case, but cant find the CCP or Rules of Court specific to this. What would they be for the 6 months you mentioned?
Expert:  CalAttorney2 replied 9 months ago.

A motion for summary judgment is not vacated by filing a "motion to vacate" (the motion to vacate only works if the judgment was based on a default by the defendant) - the MSJ is a noticed motion, the way to deal with that is by filing a motion for reconsideration (must be filed within 10 days), or by filing an appeal.

Customer: replied 9 months ago.
Could you give me the CCP or Rules of Court which give this timeline specific to MSJ in a UD? I've seen conflicting information.
Customer: replied 9 months ago.
I the motion would be requesting to "vacate the judgement" of eviction which was obtained at a MSJ hearing.
Expert:  CalAttorney2 replied 9 months ago.

Dear Customer,

That would not be a proper motion.

Following entry of an MSJ, you can either (1) file a motion for reconsideration with the trial judge; or (2) file an appeal.

You cannot file a "motion to vacate the summary judgment"

Customer: replied 9 months ago.
when would CCP 473 or 663 be used?
Expert:  CalAttorney2 replied 9 months ago.

CCP 473 is utilized prior to entry of judgment. CCP 663 is utilized following a trial.

Customer: replied 9 months ago.
I'm confused why you now say it has to be appealed and cannot be vacated though your initial response was "UD actions can have a motion to vacate filed - while there is no special statute that gives a shorter notice (so the general 6 month statute still applies)" which is why I ask for the CCP or Rule of Court you're referring to in your later answers.
Expert:  CalAttorney2 replied 9 months ago.

Because when you say that "I am looking for a motion to vacate" I mistakenly assumed that the tenant had failed to respond to the unlawful detainer complaint and had a default judgment entered against them. It was my error for not asking more follow up questions and attempting to provide you with information based on a misunderstanding.

Customer: replied 9 months ago.
Ok thanks for clarifying. So could you give me the CCP or Rules of court which would state the times to respond to a judgement in a UD case which was obtained via Motion for Summary Judgement? Thanks!
Expert:  CalAttorney2 replied 9 months ago.

As noted above, a Motion for Reconsideration (made to the trial court) must be filed within 10 days of judgment - CCP 1008

A notice of appeal must be filed within 30 days of entry of the judgment (or mailing of the judgment if there is no entry by the court). CRC 8.822

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