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EX PARTE RULING IN AN EMPLOYMENT LITIGATION-SAN DIEGO....

San Diego, CA |

GENERAL QUESTION: on an ExParte hearing the Defense asks for a DATE to calendar DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S SAC because the calendar clerk had no open dates before the trial date. The court denies Defendant's application for a DATE and insted allows Defendant to serve the Plaintiff with a "PROPOSED ORDER ON SAC". The SAC was filed on 03/15 but not processed yet and NEVER SEEN BY THE JUDGE. Can the Defendant proceed underCRC3.131 2????

Attorney Answers 2

Posted

Well if you are being served within 5 days as provided for under CRC §3.1312, sounds like the motion was heard already and granted by the court? If the proposed order was included with the moving papers and adopted by the court at the hearing, then CRC §1312 provides no 5 day period is required. This sounds bad for you, get a lawyer ASAP before you ruin your case!

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5 comments

Asker

Posted

on 03/01 was the hearing on Defendant's Motion to strike my FAC. Judge gave me until 03/15 to amend FAC. On 03/15 I file and served SAC. I also Filed CIV-012 under CCP 473, and served the nemed Defendants under "Joint Employer Liability Theory". The trial is set for August 18 and Defendent's Summary Judg Hearing for July 3. Defendant did not like my SAC and allegedly tried to Calendar a motion to strike hearing for my SAC., but court did not have an available date. My SAC IS NOT PROCESSED YET. IT WAS NOT A HEARING ON MY SAC. Yesterday, on EX PARTE Def. ASKED FOR A DATE FOR A HEARING TO STRIKE MY SAC..JUDGE Denied the DATE request and without even seeing my still unprocessed SAC allowed the BIG SHOT ATTORNEYS to "prepare a proposal according to their alleged groundsfor a Motion to strike my SAC...Defendant DID NOT PREVAIL ON SUCH MOTION....Court BLINDLY grants all the DEfendant asks....

Asker

Posted

It is NO attorney that would take over this case at this point....The CRC they served me the Proposed Order under is meant for the PREVAILING PARTY ON THE MOTION TO STIKE MY SAC....IT WAS NOT SUCH A MOTION and it is nothing they prevailed for in regard with my SAC.....I think that my best shot or choice at this point is to ADDRESS THIS TRAVESTY OF JUSTICE TO THE MEDIA....

Asker

Posted

THE MINUTE ORDER OF THE EX PARTE in question. just posted on court's website: “The Court informs counsel it has received an opposition by plaintiff and inquires if counsel is in receipt of the opposition. Counsel states it has received and reviewed plaintiff's opposition. The Court informs counsel it cannot grant defendant's request for an order shortening time to set a motion to strike date asit has no dates available. The Court states it will strike everything not in accordance with the Court's prior ruling. Counsel will prepare and submit an Order for the Court's signature. DATE: MARCH 21st, 2013”

Asker

Posted

The Judge rule on my FAC at the hearing on Defendant's motion to strike. I Filed SAC and defendant went ex parte to ask for a DATE to Strike my SAC. The Judge , from the goodness of his heart, (I was not present in court-I only filed/served my opposing papers re: the DATE) granted the defendant the opportunity to Draft a Proposed order on my SAC, that the judge didn't even see since is not yet processed."Statutes affording relief upon “notice” or a “noticed motion” are not the proper subject of an ex parte application and cannot be satisfied by compliance with CRC 3.1200′s notice requirements for ex parte relief. Defendant is not "the prevailing party in a motion regarding my SAC, because such a motion was never filed or heard by the court.

Asker

Posted

At this stage in litigation I cannot find and attorney to get involved, but the way the judge is ruling ALWAYS for the defendant (Its home court) gives me grounds for an Appeal. I will lose the BATTLE but I WILL NOT LOSE THE WAR....A trial de novo is also possible.....

Posted

Your description and comments to the other attorney are not clear.
But, in your final comment, you posted part of the order, which is very clear and gives you your answer (however, I have not seen the pleadings, the file or the orders, so this answer is an estimate at best):

"The Court informs counsel it has received an opposition by plaintiff and inquires if counsel is in receipt of the opposition. Counsel states it has received and reviewed plaintiff's opposition. The Court informs counsel it cannot grant defendant's request for an order shortening time to set a motion to strike date as it has no dates available.
The Court states it will strike everything not in accordance with the Court's prior ruling.
Counsel will prepare and submit an Order for the Court's signature.
DATE: MARCH 21st, 2013”

From that, it seems that you were allowed to submit an amended complaint, and that the prior ruling told you what you could and could not amend. Apparently, your amended complaint did not comply with the court's prior order, and it struck out those parts.
This is within the court's power. If you don't like the decision you could file a writ or an appeal.
You should contact a local attorney to find out for sure.

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