The CA Superior court in an unlimited civil suit issued a dismissal order [it upheld defendant's demurrer]. The plaintiff was gravely ill [admitted into emergency room the morning of hearing] & thus missed the demurrer hearing. The trial court was not told of illness until a few hours before the demurrer hearing date. The notice went to trial judge's motion clerk & not to civil filing docket clerk. It is uncertain if court read its email notice of continuance request before hearing time. The plaintiff did not immediately appeal the dismissal order. Next the trial court entered an order granting the defendant's motion to class plaintiff as a vexatious litigant. The plaintiff appealed the vexatious litigation order. The appeal was denied on grounds that the appeal was interlocutory. The plaintiff filed a motion to vacate the dismissal of the complaint TWO years after the demurrer hearing [&approximately 5 months after the dismissal of complaint order was entered upon the docket]. My problem is this : the defendant claims that LACHES bars relief & asks the trial court to dismiss the motion to vacate the dismissal. Was there laches? Does appeal TOLL the time to file the vacate ?
No, an appeal does not toll anything but may render the trial court unable to rule on a specific motion due to lack of jurisdiction. Laches involves prejudice to the adverse party. However, unreasonable delay, alone, is sufficient to deny your motion under 473. Laches just adds another nail. I don't like your chances of success.
My answers are for general information only. They are not legal advice. Answers assume California law. I am licensed only in California. Do not rely on my answers. Legal advice 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 during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship, nor does my answer or comment create a reasonable expectation that I am willing to discuss the possibility of forming an attorney-client relationship with anyone. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement. 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. All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take 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. See, also, Avvo's terms and conditions of use, specifically item 9, incorporated by this reference.
I agree with the other lawyer. Your chances here are not good. There is a need to get on with a law suit.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline