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CalAttorney2
CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10237
Experience:  Civil litigation attorney for individuals and businesses.
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The defendant in a personal injury case makes motion to

Customer Question

The defendant in a personal injury case makes motion to vacate default judgment. If plaintiff submits affirmation in opposition to the court without submitting to the court proof of service of that opposition paper to defendant, is it likely that the judge
would throw the opposition paper out? However if the judge accepts the opposition paper even though there is no proof attached that the defendant got a copy of the opposition paper, can the defendant use that as a ground to appeal if the judge denies their
motion to vacate default judgment? Could the defendant raise an appeal based on due process violation that proof of service of the opposition paper wasn't submitted to the court, even though the defendant submitted reply papers and didn't mention the fact
that the proof of service of opposition papers wasn't submitted to the court by plaintiff? In order to base an appeal on this ground would the defendant first have had to raise it with the judge in reply paper or motion to renew?
Submitted: 1 year ago.
Category: Legal
Expert:  CalAttorney2 replied 1 year ago.
If the defendant filed a timely Reply brief, the failure to submit a Proof of Service to the court is going to be deemed immaterial.While the Plaintiff should have filed the document with the court, the appellate court is more concerned with the purpose of the Proof (namely ensuring that the Defendant received a copy of the document and had time to file a Reply).(So this is not an "appealable error").