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Opposition to motion to vacate judgment in California with attorney affidavit of fault

An opposition to a motion to vacate a judgment in California under the mandatory attorney affidavit of fault provisions of Code of Civil Procedure section 473(b) is the topic of this blog post.

Any party served with a motion to vacate under the attorney affidavit of fault provisions should carefully review the motion and supporting documents to determine if the motion is timely made and includes the required attorney affidavit of fault with the required factual showing. This blog post will discuss certain actions by the counsel for the moving party that may result in the denial of the motion to vacate as they would prevent any Court from vacating a judgment.

Any opposition should be filed and served at least nine (9) Court days before the hearing. The term Court days means Monday through Friday, except for Court holidays. The opposition should be served by personal delivery or overnight mail. See Code of Civil Procedure Section 1005 for more details.

Code of Civil Procedure § 473(b) states in pertinent part that, “Whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, (the court shall vacate any (1) resulting default entered by the clerk or (2) resulting default judgment or dismissal entered against his or her client”.

However Code of Civil Procedure § 473(b) also states in pertinent part that the court may deny relief if it finds the default or dismissal “was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect”.

A California Court of Appeal in a recent case ruled that any motion must be both filed and served within 6 months from the date that the judgment was entered as the 6 month limit is strictly enforced.

Another California Court of Appeal ruled in a case from over 30 years ago that the outside time limit for seeking relief under § 473(b) is 6 months. This limit is jurisdictional in the sense that the court has no power to grant relief after this time regardless of whether an “attorney affidavit of fault” is filed or how reasonable the excuse for the delay. Davis v. Thayer (1980) 113 CA3d 892, 901,—in that case the Court held that, as used in § 473(b), “six months” means 182 days.

And the attorney affidavit of fault MUST be submitted. A declaration submitted by anyone else is NOT sufficient.

A California Court of Appeal has ruled in a published decision that a nonattorney’s declaration of fault does not trigger the right to mandatory § 473(b) relief.

Another published decision from a California Court of Appeal ruled that the mandatory relief provision does not operate in favor of a party representing himself or herself in propria persona. The court stated that under the plain language of the statute, the mandatory relief provision only applies in the case of an attorney representing a client.

The California Courts of Appeal have ruled that a motion to vacate judgment based on the mandatory attorney affidavit of fault should be denied in cases where any omission or failure to respond was a deliberate tactical choice on the part of the attorney.

And at least one California Court of Appeal has ruled that mandatory relief under CCP § 473 is available only if the party is totally innocent of any wrongdoing and the attorney was the sole cause of the default or dismissal.

The mandatory attorney affidavit of fault procedure cannot be used to vacate a judgment entered after a contested judgment or order.

An attorney affidavit of fault does not warrant relief from judgments or orders based on a determination of the merits such as where a party has essentially had his or her day in court.

Attorneys or parties in California who would like to view a portion of a sample opposition to motion to vacate judgment under the attorney affidavit of fault provisions of section 473(b) 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: View over 300 sample legal documents for sale

*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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