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Defendant served motion for relief from default. Five days…

Defendant served motion for...

Defendant served motion for relief from default. Five days later, defendant served another set of papers purporting to be a motion for relief from default. The second set was served more than 16 days from hearing date and my deadline to oppose had not passed. Must defendant obtain leave of court to file and serve an ammended motion under these circumstances. This is California law.

Lawyer's Assistant: Since laws vary from place to place, what state is this in?

California

Lawyer's Assistant: Has anything been filed or reported?

Please read my initial summary

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Not that is relevant to the inquiry

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Answered in 9 minutes by:
9/20/2017
legalgems
legalgems, Lawyer
Category: Legal
Satisfied Customers: 13,706
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Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

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Customer reply replied 10 months ago
Follow up: the original motion may not have been filed, I don't know. Perhaps it was the second. The caption on both papers is identically the same and no amendments have been identified

I could not find any civil procedure code that required a party to motion the court for a leave to amend a motion for relief from default.

Please see:

http://saclaw.org/wp-content/uploads/sbs-motions-in-civil-cases.pdf

Please see:

https://saclaw.org/wp-content/uploads/sbs-relief-from-default-judgment.pdf

rules for filing and service here:

http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1300

This deals with amendments of pleadings (which are not motions as pleadings state a cause of action whereas a motion is an application for an order)

How to bring a motion:

http://www.courts.ca.gov/partners/documents/insformot.pdf

So long as the relevant time frame is applicable I could not find authority requiring leave of court. If the time frame has lapsed, the party would need to file for a continuance and seek leave of court to amend the motion.

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legalgems
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Category: Legal
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