This question is in regards XXXXX XXXXX civil appeal in the state of California, 4th district, division 3. I am a pro per plaintiff and appellant appealing from a judgment sustaining a demurrer without leave to amend.
Here is a link to the appellate
I had filed the notice of appeal on 9/12/13 and have been having difficulty figuring out what I am supposed to file and where. I received a default notice in the mail, generated 9/16/13, from the superior court clerk indicating that I had not filed the designation of record on appeal and that I did not deposit money with the trial court clerk for preparing the transcripts. I believed this was related to the designation of record on appeal and fee waiver not being filed until 9/17/13 & 9/20/13, respectively, and that since those were filed shortly after the notice was generated, the default had been cured. Apparently, the default had not been cured by those filings.
I was supposed to file a proof of service with the designation of record. I had been serving all my filings on opposing counsel using the electronic service option that OneLegal lets you use when you file things electronically with the superior court clerk. The electronic service provider sends opposing counsel an email when you file things. I was operating under the mistaken belief that when you use their eService option, the fact that opposing counsel had been served electronically would be communicated to the superior court and that this was acceptable proof that opposing counsel had been served. Additionally, I discovered that while the trial court had waived the fees for the clerk's transcript on appeal, apparently the court does not waive the fees for the reporter's transcript.
So, I had the opposing counsel served again by a party other than OneLegal and filed the proof of service with the trial court. I contacted the court reporter and I have mailed her money ($79.59) to prepare the transcripts and she said she would give me a waiver that I can file with the clerk when she gets the money. I am currently waiting for her to get the money and send me the waiver so that I can file it with the superior court clerk.
On 10/22/13, the superior court notified the appellate court that I failed to cure the default and the appellate court has dismissed my case per rule 8.140(b) (Failure to procure the record).
I want to reinstate the case, and I am unsure of how best to go about doing this. I see a variety of options. For example, under Code of Civil Proceudre § 473(b) I can file a motion to set aside the dismissal, but I am concerned about using moving pursuant to this section because it requires that "[a]pplication for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted." I worry that this would mean that I would have to include a copy of my opening brief.
I also see that under rule 8.812 I may apply for relief from default, but I do not know if this is the right rule to cite because I do not know if "default" is what I need relief from.
I see that under rule 8.268 I may petition for a rehearing, but there has been no hearing so I don't see how there could be a rehearing.
I see that under rule 8.264(c) the court may modify the decision.
I also suspect that there are things that I am not aware of.
What should I do?