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Motion to vacate judgment in California pursuant to Code of Civil Procedure section 286

A motion to vacate judgment in California pursuant to Code of Civil Procedure section 286 is the topic of this blog post. Also discussed in this blog post is requesting in the alternative that any default, dismissal judgment or other order be vacated on the grounds that severe attorney abandonment and neglect amounted to positive misconduct and the default, dismissal, judgment or other order should be vacated on the grounds of extrinsic mistake under the inherent equity power of the Court.

Code of Civil Procedure § 286 states that, “When an attorney dies, or is removed or suspended, or ceases to act as such, a party to an action, for whom he was acting as attorney, must, before any further proceedings are had against him, be required by the adverse party, by written notice, to appoint another attorney, or to appear in person.”

At least one California Court of Appeal has stated that failure to give the notice required by Code of Civil Procedure § 286 may be used as an alternative ground for relief in a case where there is a showing of positive misconduct by the attorney.

Positive misconduct has been found where an attorney failed to serve process as well as failing to appear at several pretrial conferences or to communicate with the client, the court and opposing counsel. Other cases have found positive misconduct where an attorney failed to respond to discovery requests or to oppose a motion to dismiss for failure to respond to discovery, was suspended by the California State Bar and failed to oppose a motion resulting in a default judgment.

Numerous cases from the California Courts of Appeal have stated that positive misconduct by an attorney may entitle the client to relief from any default, dismissal, judgment or other proceeding so long as the client is relatively free from negligence. Relief may be denied if the client was also negligent although several decisions have stated that a client has the right to rely on the performance of their attorney and failing to check on the status of a case even for periods exceeding one year does not constitute negligence on the part of the client.

One fairly recent case from a California Court of Appeal stated that where the conduct of the attorney amounts to abandonment the Court will consider factors such as the policy favoring a trial on the merits; the client’s own conduct; prejudice to defendant and the policy that innocent clients should not have to suffer from their attorneys’ gross negligence among others.

Several decisions of the California Supreme Court have stated that a trial court has an inherent equity power under which it may grant relief from a default, dismissal, judgment or other order obtained through extrinsic fraud or mistake.

Attorneys or parties in California who would like to view a portion of a 14 page sample motion to vacate judgment in California on the grounds of attorney misconduct containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail 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.

*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.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale at:  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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