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Collateral attack on judgment in California

A collateral attack on a judgment in California is the topic of this blog post.  A collateral attack on a judgment is also known as an independent action in equity and is fundamentally different from a motion to vacate a judgment in that it involves filing a complaint to vacate the judgment for lack of personal jurisdiction.  The complaint could also include other causes of action such as vacating the judgment on the grounds of extrinsic fraud or mistake.

The advantages of a collateral attack on a judgment are (1) there is NO time limit for a collateral attack on a judgment, (2) because filing an independent action in equity involves a separate lawsuit, the party seeking to vacate the judgment is allowed the full panoply of discovery methods utilized in California litigation including discovery requests, depositions, and most importantly, the use of oral testimony, and (3) the fact that a California Court of Appeal ruled in a recent case that laches cannot be invoked as a defense in cases where there has been a complete failure of service of process upon a defendant.  See County of San Diego v. Gorham (2010) 186 CA4th 1215, 1229.

Another bonus is that prejudice is not a factor in setting aside a void judgment or order. See Sindler v. Brennan (2003) 105 CA4th 1350, 1354- that case involved a dismissal order entered in violation of the bankruptcy stay.

Another advantage is that denial of any motion made under section 473 of the Code of Civil Procedure generally does not preclude an independent action in equity to set aside the judgment, in other words the denial of the previous motion is not entitled to collateral estoppel effect in most cases. See Groves v. Peterson (2002) 100 CA4th 659, 668. Note that in that case the Court of Appeal did state that collateral estoppel may apply if the defendant had an opportunity to present oral testimony at the section 473 motion hearing and the issues were fully litigated.

The reasoning behind the general rule that the denial of the previous motion is not entitled to collateral estoppel effect, which has been well settled in California for over 100 years, is the fact that, in the standard motion procedure, the moving party is limited to presenting ex parte affidavits of voluntary witnesses in most cases unless the trial court exercises discretion and permits a greater latitude.

In using the motion procedure the party does not have the right to produce oral testimony or to compel witnesses to attend for deposition or cross-examination.  The motion procedure, while simpler and more convenient, does not involve all the aspects of full litigation. Because the remedies of a motion in the underlying case and an independent action in equity are cumulative, parties should be entitled to resort first to the convenient and expeditious remedy without worrying about the issue of collateral estoppel if the motion is denied.

Thus even if a section 473 motion has been denied, parties may still pursue an independent action that affords them all the advantages of a regular trial of the issue.

It should be stressed that although technically speaking there is no time limit to filing an independent action in equity to vacate a judgment parties should exercise diligence once learning of any judgment entered against them.

Attorneys or parties in California who would like to view a portion of a sample complaint complaint or independent action in equity to vacate a judgment on the grounds of lack of personal jurisdiction and extrinsic fraud or mistake sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

To view over 300 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing.  Just visit http://freeweeklylegalnewsletter.gr8.com/  for more information.

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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