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Putting a motion back on calendar

Irvine, CA |
Filed under: Civil motions

Motion to vacate judgment based upon fraud taken off calendar due to pending denote appeal which challenged jurisdiction . Appeal fails due to statute of limitations . Can I revive the fraud motion and how .

Attorney Answers 4

Posted

There is insufficient information in your post. Generally speaking, if the case is on appeal, the trial court lacks jurisdiction to make any rulings while the appeal is pending (regardless of whether the appeal lacks merit or not). You need to wait until the appellate court remands the case back to the trial court before you can revive or re-file any motion.

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

Your question has limited facts and is therefore hard to follow? Once the case is on appeal the trial court loses jurisdiction and you will have to win a remand back to the trial court or a new trial unless the court of appeal on its own acts based on the fraud? I am assuming you filed the appeal late or is there a statute of limitations that was the basis for the trial court denyng the case?
You really need a lawyer it seems you are in over your head in this case?

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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Posted

Should contact the clerks office and ask to have the prior motion set for new hearing date, and then you need to serve new notice of hearing. Or, you may have to refile the motion.

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Posted

I am not certain of the kind of fraud on which you based your motion. Generally, after judgment, fraud is not a ground for appeal unless you made a motion for new trial. The time for doing so has passed.

Fraud may also be a grounds to set aside a judgment if it kept you from answering the complaint. In that event, the court's jurisdiction would be fraudulent. But you already have an appeal based on lack of jurisdiction. I don't see how you can challenge the court's jurisdiction again by saying that it was fraudulently obtained.

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