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How can I get a post-judgment family court hearing to rule on declarations and exhibits denied at the filing of a motion?

Motion to set-aside stipulated judgment/MSA for Fraud, Duress and Mental Incapacity denied. At filing clerk negligently refused properly labeled declarations and exhibits with appropriate judicial council forms. There was no hearing on the merits as hearing only dealt with jurisdiction, timeliness of service, and my ADA request. One month after hearing, all the documents were returned to me by the clerk. Two months after the hearing I received the ruling denying the motion. All that was before the judge was an incomplete points and authorities -- missing my declaration, expert witness and other exhibits. Can I do motion for reconsideration?

Sacramento, CA -

Attorney Answers (1)

Charles Richard Perry

Charles Richard Perry

Lawsuit / Dispute Attorney - Hollister, CA
Answered

Pursuant to Code of Civil Procedure 1008, the motion for reconsideration must be made within 10 days of written notice of the order, and upon changed facts.

When the clerk refuses to file declarations and exhibits, it is incumbent on the party to follow up and fix the errors as soon as possible. The materials in those declarations will not constitute "changed facts" upon which a motion for reconsideration can be brought.

If the motion was denied on procedural matters such as jurisdiction and service, it may be possible to start the process over again and obtain a ruling on the merits. I would strongly advise you to invest the necessary funds in obtaining a lawyer's assistance, to minimize the chances of finding yourself in a similar situation, and to get a third-party analysis of your chances of success.

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