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richanne96
richanne96, Attorney
Category: Personal Injury Law
Satisfied Customers: 281
Experience:  Attorney in private practice in Phoenix, AZ
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I am in California. My previous attorney dismissed my case

Customer Question

I am in California. My previous attorney dismissed my case on 01/11/2016 without my consent and knowledge. He never notify me about the dismissal and I filed a motion to vacated the dismissal in pro per with the court on 07/11/2016. Defendant opposed my motion and the hearing was held on 10/18/2016. I retained an attorney on 10/14/2016 but because time was not enough for him to file a written response and he appeared on the hearing date but without a signed substitution of attorney. The judge already made a tentative ruling of denial prior to the hearing and did not hear defendant’s and my attorney’s arguments. Was the judgment a default judgment because I did not appear and the attorney was not my attorney of record?
What is the time frame to file a motion to vacate or set aside the judgment if it was not a default judgment? The judge failed to hear defendant’s and my attorney’s arguments and made his ruling at the hearing. I would like to file an appeal but would like to know if the appeal must be filed with the appellate court or with the superior court?
Submitted: 26 days ago.
Category: Personal Injury Law
Expert:  richanne96 replied 26 days ago.

Hello and thank you for choosing Just Answer. Without seeing the judgment, it does not sound like a default judgment. A default judgment occurs usually where a Plaintiff (such as yourself) files a lawsuit and the Defendant is served but fails to answer. The same thing can occur when a Plaintiff fails to Answer a countersuit. It does not apply when hearing motions. In California, a motion for reconsideration must be filed within 10 days of the service of the Order. The Notice of Appeal must initially be filed with the Superior Court. Your new attorney will know these things and should go ahead and first file a Notice of Appearance if s/he has not already.

Customer: replied 26 days ago.
How bout the time frame to file a motion to set aside or vacate the judgment? A copy of the Minute Order is attached. Thank you.
Expert:  richanne96 replied 26 days ago.

Actually, the order is not attached, but it is not important. A motion to set aside or vacate a judgment is generally made only in case of a clerical error. There are strict requirements for when it can be used. It must be brought within a "reasonable time." It does not sound like this motion would be appropriate in your case, but rather a motion for reconsideration.

Customer: replied 26 days ago.
A motion to set aside / vacate the judgment is appropriate because of erroneous legal basis of the judgment (CCP 663) and depriviation of my rights to due process. reconsideration is not an option because the time frame of 15 days has passed. I just wanted to know the time frame for filing a motion to set aside / vacate the judgment, not a reasonable time. Thank you.
Expert:  richanne96 replied 25 days ago.

The absolute maximum under the law for filing such a motion is six months after the judgment.

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