I recently filed a Motion to Set Aside Default and Default Judgment for an unlawful Detainer. First, I was never served, and second I was no longer residing at the property based on the allegations of the complaint. This happened in 2010 and I recently received a notice of garnishment due to the judgment. I filed a Motion to Vacate the default judgment. However, the judge did not grant the motion because he said I did not attach any evidence to the Motion. I intend to move the Court for another motion to vacate the Judgment. However, I am not sure if I need to file a Motion to Reconsider or can I file a complete new motion to vacate the default (this time with evidence attached). Please help me, I do not have money to hire an attorney and I need as much guidance as possible. thanks
You should file a new motion provided the motion was denied without prejudice. However, you must be certain to include in your new motion the fact that a prior motion was made and denied. You need to include all facts particular to the prior motion, i.e., date, before whom made, and the ruling. Good luck.
SINCE 1974. My answers are for general information only. They are not legal advice. Answers assume California law. I am licensed in California, only. Answers must not be relied upon.<br> <br> Legal advice and counsel must be based on the interplay between specific exact facts and the law. This forum does not allow for the discussion of that interplay. My answer to any specific question would likely be different if that interplay were explored during an attorney-client relationship. I provide legal advice and counsel during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us.<br> <br> The communications on this website are not privileged or confidential. I assume no duty to anyone by my participation on Avvo because I have answered or commented on a question. Specifically, I assume no duty to respond to any question, comment, telephone call, or email because of my participation.<br> <br> All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice or counsel in answer to any question, if you are an interested party you should promptly and personally consult an attorney licensed in the appropriate jurisdiction for advice and counsel. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference.<br> <br> Michael R. Daymude, Esq., Sherman Oaks Galleria – Comerica Bank Building, 15303 Ventura Boulevard, Suite 900, Sherman Oaks, CA 91401-6150. Telephone: 818.971.9409 • Website: mrdaymude.com
This is a very tricky question which depends exactly on what the judge did. If the judge actually denied your motion, it may or may not have been done "with" or "without prejudice", which would be significant. Or, the judge might simply have not ruled at all but put the case off calendar because of the defect. A motion to reconsider has very specific requirements with possible sanctions if not followed, and great care should be exercised. If the garnishment is for any significant sum of money, meaning more than it would cost to consult and employ an attorney, you should consult an attorney right away.