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Motions to Vacate Dismissal and Reinstate Appeal.

Los Angeles, CA |

Does anyone know anything about filing a Motion to Vacate Dismissal and Reinstate Appeal in California Court of Appeals (i.e. content requirements etc.). I know that you have 15 days from the Court's order granting the denial to file such a document (same timeline for Petition for Rehearing - CRC 8.268), but not much else. I think it would be difficult to even file such a motion, because the Court of Appeals don't seem to issue opinions regarding motions, and hence basically you would be basically re-arguing your opposition, since you don't have the benefit of an opinion to focus your argument and tell the court why it may have erred.

In Trial Court we filed a Mtn to Vacate Jdmnt &Enter New Judmnt (CCP 663) re sustaining of demurrer by the trial court, and sua sponte, based on law cited by neither party, stated that such a motion did not apply to rulings re demurrers. The CCP 663 Mtn was heard 3 months after demurrer hearing, because the court requires a reservation,&that was the 1st available reservation, which was made on the day same the demurrer was sustained. Generally after a CCP 663 motion the aggrieved party has 30 days to file a NOA in unlimited cases (15 days in limited), and NOA was filed w/in30 days of the CCP 663 hearing, but opposing party claims that the appeal is untimely because CCP 663 motions don't apply to demurrer rulings, despite the plain language of CCP 663 and case law which states that a CCP 663 can be brought re any ruling made by the Court, &the issue in the case cited by the Trial Court to support is decision is not on point b/c said case refers to the mislabeling of a CCP 663 mtn which isnt the issue here.

Attorney Answers 1

  1. Your hunch is correct. Do you have any inkling as to why the appeal was dismissed in the first place? Did you miss a deadline? Did the respondent file a motion to dismiss, which was then granted? Much depends upon why (and when) your appeal was dismissed.

    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. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.

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