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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

  1. 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!

    Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only.

  2. 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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