Legal Question in Appeals and Writs in California

Court struck content of settled statement on appeal: Might clerk's record on appeal, my opening brief & oral argument suffice?

I served and filed written opposition and proposed modifications to the court's striking of most items of my original proposed statement on appeal. But, the court issued no further ruling on the matter. Primary purpose of the statement was to serve as record of what was said at a hearing on the motion of defendants to vacate defaults and default judgments, which the court had granted. (The court struck that entire item; it also struck my reason for appealing, which rule 8.137 proscribes the striking thereof. The statement is now useless.) Is there any type of filing with the court of appeal which might address this problem, e.g., a writ of mandate to compel settling of the statement? An inspection of the judgment roll clearly shows that motion to vacate defaults and default judgments, pursuant to Cal. Civ.Code § 473, subdiv. (b), was made after the statute's deadline, i.e., within the period of six-month after defaults had been entered; and, therefore, the order to vacate is void on its face. Regardless, might not the court of appeals still be able to reverse the order vacating default and default judgment based upon the clerk’s record on appeal, my brief & oral argument?


Asked on 4/28/18, 6:05 pm

1 Answer from Attorneys

Edward Hoffman Law Offices of Edward A. Hoffman

Your question isn't very clear about what happened. The procedure parties seeking a settled statement must follow is complex, and I can't tell whether you followed it. I also can't tell exactly what the court did or why, which makes it hard to suggest steps you could take to challenge its decision.

Feel free to contact me directly if you'd like to discuss your case. I have over 20 years of appellate experience, and am certified as an appellate specialist by the State Bar of California's Board of Legal Specialization.

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Answered on 4/29/18, 2:41 pm


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