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CalAttorney2
CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10244
Experience:  Civil litigation attorney for individuals and businesses.
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My wife and I went to court and were granted a civil harassment

Customer Question

My wife and I went to court and were granted a civil harassment restraining order against a neighbor. Court documents were served by the county sheriff on June 4 2015, with a court date on June 12, 2015. The defendant did not show for the court date and we were granted the order....The actual order was served by the sheriff as well. The defendant sent a rebuttal dated June 10th, 2015, stating that he would be out of town (which we never received). He never asked for a continuance in the rebuttal letter and has now submitted a form to have the court rehear the case based on CCP 473.5 :lack of notice. How is this possible?
Also, we just received the request to set aside and grant a new hearing documents on July 16th, 2015 with a scheduled hearing for July 20th, 2015. The envelope is postmarked July 10th, 2015 and the date the form was filed was July 2, 2015. We sent a letter of continuance this morning to the court, but were informed that the court would proceed monday regardless of our letter or not. It is very difficult for my wife and I to attend since the home is eight hours away by car. We also both work full time and two days away from work is difficult at best. What is the recourse of us not being able to appear in court?
Submitted: 2 years ago.
Category: Legal
Expert:  CalAttorney2 replied 2 years ago.
You can try making an appearance via "court call" (although with a hearing on Monday morning, this is going to be hard to do as you don't have time to get court permission ahead of time).Carefully read your notice though, if the only thing that the hearing is for is to set aside "vacate" the default, you may not need to oppose the matter. The court is probably going to vacate the default whether you appear or not (default judgments are disfavored and as long as the motion to vacate is filed within 6 months of the default the court is going to grant it - more likely than not). What will most likely happen is that the court will vacate the default, leave the temporary in place, but put the hearing for your permanent restraining order back on calendar.Again - carefully read the papers you were served with, and see what type of relief the other party is seeking. If they are trying to vacate the entire order, it may be worth your while for at least one of you to make the trip to court to oppose it. Short of that, you can try emailing or calling civil litigation attorneys near the court to see if they can make an appearance for you on Monday (most attorneys read their email over the weekend, so if you look for civil litigation attorneys nearby and email a dozen or so, you may wind up finding one that can appear for you - making it less expensive than driving yourself).You can find local attorneys using the State and local Bar Association directories, or private directories such as www.AVVO.com; www.FindLaw.com; or www.Martindale.com (I personally find www.AVVO.com to be the most user friendly).
Customer: replied 2 years ago.
He is not trying to vacate the entire order, just to rehear the case based on not having time to prepare.....what we are both flummoxed by is the fact that we followed the law and served with plenty of time and he chose not to attend and go on a vacation instead! I understand that a default judgement is not the preferred method, but isn't a judgement a judgement?
Expert:  CalAttorney2 replied 2 years ago.
No, defaults are almost always set aside (I litigated one default that I received and kept it - but it was against a large corporation with a huge in house legal department). For the vast majority of cases, a default judgment is going to be vacated as long as the party files their motion within 6 months of entry.