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socrateaser
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 37949
Experience:  Retired (mostly)
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I have a question. I am in the county of Alameda in California.

Customer Question

I have a question. I am in the county of Alameda in California. I was not properly served and missed a hearing date. The Plaintiff got a default judgement. I made a motion to set aside the default judgment because I was not properly served. I was not served in person, and I was in the process of buying a new home, and taking care of an ill parent, so I was not at my new address where the Plaintiff sent the summons in the mail. At any rate, I filed a motion to set aside the default judgement. The plaintiff emailed me and said that I have to meet and confer. I am waiting for the judge to sign the order for the motion to set aside the default judgement so that I can Demurrer to the Complaint. Do I still have to meet and confer. The hearing date on the hearing to set aside the Default Judgment in July 25th. I do not want to meet and confer. I was not properly served and I intend to ask the judge to dismiss the case. So, do I have to meet and confer before the hearing to set aside the default judgment?
Submitted: 3 years ago.
Category: Legal
Expert:  socrateaser replied 3 years ago.
Hello,

There is no requirement to meet and confer prior to a hearing on a relief from default judgment -- not in the Code of Civil Procedure, the California Rules of Court, or the Alameda Superior Court Local Rules.

It would make no sense, because the parties cannot resolve their differences prior to a set aside hearing, because, only the court can set aside judgment. Parties cannot stipulate to a set aside.

Hope this helps.
Customer: replied 3 years ago.

I wrote the Plaintiff that I have a motion before the judge to set aside the default judgment and that the hearing was on the 25th of July and she told me that I still had to meet and confer. This did not make sense to me either. I want the judge to rule on the Default Judgement so that I can present a motion to Demurrer to the Complaint. Thank you for your help. I appreciate it. The Plaintiff is an attorney representing herself and I am representing myself, but I am not an attorney, so thank you for your clearing this up for me.

Expert:  socrateaser replied 3 years ago.
You will find as time goes on, that attorneys don't usually know the law any better than do laypersons. We just "fake it" better than you do.

Best wishes.
Customer: replied 3 years ago.

Smiling. What is frustrating to me is that I want to present my Demurrer to the Judge, but I cannot submit it until he signs the motion to set aside the default order. The hearing is on the 25th, but I wanted to be able to have the Demurrer in prior. Clerks will not let me file it until he signs the order.

Expert:  socrateaser replied 3 years ago.
Unless and until the default is set aside, your case is over, and your next step would be an appeal. There is no jurisdiction for the court to entertain a demurrer, without a set aside, first.

Hope this helps.
Customer: replied 3 years ago.

Thank you.

Expert:  socrateaser replied 3 years ago.
You're welcome and good luck!

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