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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 117420
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Can you file a motion to reconsider of a denied motion to to

Customer Question

Can you file a motion to reconsider of a denied motion to to vacate default on CCP 473? My first motion was denied without prejudice, but I was unable to get to the hearing of my second motion when I'd filed the correct affidavit because I was in the ER passing a kidney stone. I was quite certain the judge was about to grant my first motion because he said he didn't want to rule against someone unless he was sure they were there. (I believe I had a good claim because I had attempted to fax file my answer two weeks prior to the default being issued, and I had proof.) When I finally healed from my kidney stone , I refiled the motion and the judge was absent prior to the 4-day weekend. We had to wait 2 hours until another judge could come in. When she did, I heard her lecturing another tenant/defendant about how people will counsel them to file meritless motions to quash and demurrers as common delaying tactics (I had filed a motion to quash and subsequently a writ petition but not frivolously -- the summons and complaint had never been served, but because I hadn't been named in the complaint, and the only named tenant was not living there and nowhere to be found, I was only permitted to file something if, at the clerks suggestion I file a prejudgment claim; however, nowhere on the claim did it mention that I was making a general appearance by doing so, so had been trapped.) Their proof of service was finally filed when I filed the writ, and I am now able to prove that the registered process server committed two counts of perjury as he claimed to have served the only tenant named in the complaint, who was incarcerated at the time.) When it was my turn to be heard, the judge who clearly had not read anything in my motion, but likely only just looked at the case summary (probably particularly because the she'd seen that the writ of possession had been issued weeks before, but had yet to be served at the time and I was and am still in possession for the next few days anyway) she simply said, "You've had enough time." She repeated that after I asked her why she said that, she said "you didn't show up to your last hearing". When I told her I was in the ER again she just said "You've had enough time. Next case." I'd like to appear before my original judge particularly in light that I can now prove the court doesn't even have jurisdiction since the process server perjured himself. (He had in the first case the tried to bring, too, but at trial we didn't get that far because it turned out the proof of service they'd filed was for a different address and case, so it was dimissed -- but this is a patten.) What are my options for relief at this point?
Submitted: 2 years ago.
Category: Legal
Expert:  Law Educator, Esq. replied 2 years ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Yes, you can file a motion to reconsider the denial of your motion to vacate and you need to bring in your medical records to show why you were not able to appear.
Having a legitimate medical condition is grounds to give a continuance. Also, if you had not received proper notices that is the basis for vacating and the fact the judge would not accept proof that you missed court because of your emergency medical condition would be an abuse of discretion of the judge.