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Excessive Post-Judgement Litigation (Custody) in the Trial Court is preventing me from prep Appeal Brief. Do I have recourse?

Van Nuys, CA |

Malicious Ex Spouse with even more Malicious Attorney Boyfriend wants to keep the Property she stole by way of a fraudulent Default Judgement. As soon as she finds out I am appealing the DJ, she gets mad and files a series of 5 BS RequestS for Orders over the space of 9 months…attacking my custodial rights. Do I have recourse? Or do I choose between Property and Child?

Attorney Answers 4


Yes, you have recourse. And you know what the recourse is--hire an attorney to defend you and put a stop to your ex's antics.

READ THIS BEFORE CALLING OR EMAILING ME: I am licensed to practice before the state and federal courts in Virginia. We have not established an attorney-client relationship unless we have a signed representation agreement and you have paid me. I am providing educational instruction only--not legal advice. You should speak with an attorney to whom you have provided all the facts, before you take steps that may impact your legal rights. I am not obligated to answer subsequent emails or phone calls unless you have hired me. I wish you the best of luck with your situation.

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You might be able to ask for a stay. To be sure, you need to talk to a family law attorney.

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Hire appellate counsel to handle our appeal and prep the opening brief.

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Get a lawyer.BACKGROUND

When a defendant is served with a Summons and Complaint, the defendant has a limited amount of time (typically 30 days) in which to respond to the lawsuit. If a defendant fails to respond, the plaintiff may ask the court to enter a "default judgment" against the defendant.

In a breach of contract/collection case, the amount of the judgment is usually the amount requested by the plaintiff in the complaint. In a personal injury or property damage case, the amount awarded is limited to the amount of damages established by the evidence the plaintiff presents to the Court.


California Code of Civil Procedure sections 473(b), 473(c), 473(d) and 473.5 specify the most common grounds upon which you can base a motion for relief of default or default judgment. These grounds include:

Inadvertence, Surprise, Mistake, or Excusable Neglect (CCP 473(b)):

Perhaps the most common basis for set aside of a default judgment is inadvertence, surprise, mistake or excusable neglect. Under CCP §473(b), the court may set aside a default and default judgment if the defendant asking for the set aside presents enough evidence to the court to demonstrate that the default was entered by inadvertence, mistake, surprise, or excusable neglect. This motion must be filed within six months of the default being set aside.

"Inadvertence" and "excusable neglect" are virtually synonymous (See Barnes v. Witt, 207 Cal. App. 2d 441 (1962)), and are the most common reasons for a set aside. In addition to filing a timely motion, the defendant asking for the set aside must present sufficient evidence for the court to find that the inadvertence or neglect was excusable. To be excusable, the neglect must have been the act or omission of a reasonably prudent person under the circumstances. Forgetting about the lawsuit, being too busy to properly respond, or being unable to afford an attorney are not grounds for excusable neglect. Examples of excusable neglect include:

Illness that disables the party from responding or appearing in court
Failure to respond because you relied on your attorney to do so
Failure to appear at trial because you relied on misinformation provided by a court officer
A mistake of fact occurs when a person understands the facts to be other than they are. A mistake of law occurs when a person knows the facts as they are, but has a mistaken belief as to the legal consequences of those facts. Ignorance of the law or negligence in researching the law does not generally constitute an excusable mistake, and therefore is not usually ground for relief from a default; however, the more confusing or obscure the critical fact or point of law that caused the default, the more likely it becomes the court will find the mistake to be excusable.

Surprise occurs when a party is placed in an injurious legal situation, through no fault or negligence of his or her own, that ordinary prudence would not have guarded against.

Typically, in the day-to-day handling of these motions, the court does not focus on whether a problem is a "mistake" or "inadvertence" or "excusable neglect," but rather looks at what went wrong, and whether it is reasonable under the circumstances to relieve the requesting party from the judgment.

Party not given "actual notice" in time to defend (CCP 473.5):

Even if service of the summons is proper, sometimes it does not result in "actual notice" to a party in time to defend their case. "Actual notice" means the party genuinely does not know of the litigation, so to show a lack of actual notice a defendant would need to demonstrate to the court that he or she lacked knowledge that the lawsuit existed. This lack of knowledge cannot be caused by the defendant's inexcusable neglect or avoidance of service.

The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Howard Roitman, Esq. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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