I was sued by a Debt Buyer in the Superior Court - Limited Civil. After trial, the court took the matter under submission and scheduled a hearing for Submission of Judgment for Dec 16, 2014. On Oct 31, 2014, the court ruled in my favor and I served a Proposed Judgement and Memorandum of Cost on the Plaintiff on Nov 3, 2014. I notified the attorney for the Plaintiff that if I did not hear back from him within 14 days disputing any of the cost, I would file it with the court. I did not hear back from him and filed the documents and proof of service with the court.
I have now received a Motion for Reconsideration of Award and Cost from the Plaintiff. The lawyer knows I now live out of state of having to come back in Jan for his Motion would be costly for me. Any suggestions?Do I need to file an Opposition to his Motion? Can I ask the court to hear his Motion at the hearing for the submission of Judgment? For clarification - The Plaintiff did not file a motion to Tax within the permitted time. He filed the Motion for Reconsideration once he noticed he forgot to file a motion to tax and claimed he never received my Proposed Judgment or Memorandum of Cost, even though a Proof of Service was filed with the Court. They were sent not only by US Mail, but also by FAX
You should definitely file a written opposition to the motion for reconsideration and submit on your papers (meaning you waive oral argument). The motion is untimely, and most likely also fails to meet one or more of the requirements as set forth in California Code of Civil Procedure section 1008. Section 1008(a) provides as follows:
"When an application for an order has been made to a
judge, or to a court, and refused in whole or in part, or granted, or
granted conditionally, or on terms, any party affected by the order
may, within 10 days after service upon the party of written notice of
entry of the order and based upon new or different facts,
circumstances, or law, make application to the same judge or court
that made the order, to reconsider the matter and modify, amend, or
revoke the prior order. The party making the application shall state
by affidavit what application was made before, when and to what
judge, what order or decisions were made, and what new or different
facts, circumstances, or law are claimed to be shown."
A motion for reconsideration cannot be used simply to ask the court to change its mind.
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.
Yes, you need to file a written opposition. You may be able to appear at the hearing via telephone. If not, it may make sense to hire a lawyer to make a special appearance on your behalf.
You should file opposition to the Motion to preserve your challenges and claims. I believe that your Memorandum of Costs was premature as no judgment has yet been entered. See California Rules of Court 3.1700 (a). So, without reading the Motion, it is not possible to fully understand what the opposing attorney is doing. In any event, you should also contact the judge's clerk to see if they accept appearances by telephone. There is a service ("Court Call") you MUST use (courts do not recognize a party calling in from their personal phone) who can set that up for you for a small fee. They can explain the procedure. A colleague has stated that you should hire a contract attorney who can make a special appearance for you. Not sure that works for an in pro per party, but also worth investigating. Obviously, you know the case best and that is why you should consider appearing by telephone.
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