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I was not able to get legal representation for a hearing and there was a summary judgment allowed.

San Diego, CA |

I was not able to get legal representation for a hearing and there was a summary judgment allowed for the other party. How many days do I have to have the case reheard? Or to set aside the judgment? Is it from the day the motion was granted or from the day the of the mailing of the notice of entry? Which day is the day of notice of entry?

Attorney Answers 5

Posted

You have ten days from the notice of entry to move for reconsideration. Motions for reconsideration are highly technical, so you should get some assistance.

If the court enters judgment before hearing the motion for reconsideration, it loses the ability to rule on the motion. You would then need a motion for new trial, which must be filed 15 days after service of the notice of entry of judgment. The five-day extension for mailing does not apply to this period.

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Posted

There is no such procedure as a motion to set aside a summary judgment, not like a motion to set aside a default. If you have a summary judgment against you, your remedy is to file a notice of appeal. However, your chances of prevailing on an appeal of a summary judgment are not good. You would need to show that the trial court that granted the MSJ made an error in the law.
If you did not appear at the MSJ hearing or failed to file an opposition, you could try and request the court vacate the MSJ and allow you an opportunity to avoid essentially what was a default for non-opposition and hope the judge would allow you due process to be heard. if you filed an opposition and appeared to argue your case, your only remedy is likely the appeal of the MSJ. The court must treat you or hold you to the same standard as the opposing lawyer, even though you are not a lawyer.

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.

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1 comment

Constantine D. Buzunis

Constantine D. Buzunis

Posted

The time allowed to file a Notice of Appeal depends on whether there was a notice of entry of judgment and, if so, when it was served or whether there was a timely motion (for new trial, to vacate the judgment, for judgment notwithstanding the verdict, or for reconsideration) that, when denied, extends the time. What is notice of entry, and how does it affect the time of filing? Judgment is entered when the court clerk file-stamps the appealable order or judgment. The parties may not know the exact date when this was done. The court clerk or any party may provide notice that the judgment was entered. The clerk may do so by serving (as discussed later) a Notice of Entry of Judgment (or Order) or a copy of the judgment or order to the person filing the Notice of Appeal; any party may provide Notice of Entry of Judgment by serving each of the other parties with either (1) a Notice of Entry of Judgment (Sample Form B) or (2) a file-stamped copy of the judgment. A Proof of Service (Sample Form C) must be attached to either document. If either the clerk or the party has served the notice of entry, the Notice of Appeal must be filed within 60 days of the date of either (1) the court clerk’s serving or (2) the party’s serving a copy of the judgment, minutes, or Notice of Entry of Judgment, whichever comes earlier. (CRC rule 8.104(a).) What if there is no notice of entry of judgment? If there is no notice of entry, the appellant has 180 days after entry of the order or judgment to file the Notice of Appeal. (CRC rules 8.104(a), (c).) Even if there are extensions (see next section), the Notice of Appeal may not be filed if 180 days have passed since the entry of the order or judgment (recall that this is the date stamped in the upper right-hand corner of the judgment or order). What motions will extend the time to file? The time to file the Notice of Appeal may be extended if there is a timely motion:  For new trial,  To vacate (or set aside) the judgment,  For judgment notwithstanding the verdict, or  To reconsider an appealable order. (CRC rules 8.108(b)–(e), 8.823(b).) The time limits for filing these motions are set out in Code of Civil Procedure sections 659 (for motion for new trial), 663a (for motion to vacate the judgment), 629 (for motion for judgment notwithstanding the verdict), and 1008(a) (for motion to reconsider an appealable order). If one of these specified motions has been filed, you should carefully consult CRC rules 8.108 and 8.823 to determine the applicable deadline for filing the Notice of Appeal.

Posted

You would not have the right to have the summary judgment reheard, and unless you have valid grounds for reconsideration as set forth under Code of Civil Procedure section 1008, you would not be entitled to reconsideration. You will be sanctioned for filing a meritless motion for reconsideration. You cannot make a motion to set aside the judgment. There is no such thing.

You might be able to file a motion for new trial, or you may be able to file an appeal, but regardless, you should not attempt to handle anything from hereon by yourself. You need an attorney.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

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Posted

Hire an atty immediately. You have few options available, and none are attractive.

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Posted

This is a situation where you need to seek advice of counsel ASAP.

This information is provided for informational purposes only and should not be relied on as legal advice. Nothing stated constitutes the establishment of an attorney-client relationship. You should not use anything stated without first obtaining the advice of an experienced attorney who has reviewed your particular situation in a private setting. You are welcome to contact my office and set up a free confidential consultation whereby I can have the time to fully discuss and analyze your particular situation before providing you with legal direction and/or advice.

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