Iím a plaintiff proper, in a civil superior court case. The defense lawyer demurred my complaint and thereafter, retaliated against me with a motion. The court granted the defendantís vindictive motion and now I want to motion the court to set aside itís injurious order. My motion to set aside the courtís order will include pleading that supports the courtís order was based on a previous order that was vacated. And furthermore, the courtís order was made due to defense councilís alleged fraud, my mistake as a proper, inadvertence and surprise. My objective will be to propound discovery on the defendant to have court ruling on my first amended complaint. Should I motion with CCP 473 or CCP 663?
3 Answers from Attorneys
Without reviewing your papers, it is not possible to advise you. Given your two defeats in court, moreover, I strongly suggest you retain a lawyer for an hour or so to review your papers and give you some advice.
I see no basis for a motion under CCP ßß 473 or 663, based on what you wrote. The proper procedure is likely a "motion for reconsideration," pursuant to CCP ß 1008. If you do not strictly follow the requirements of that section, then the motion will be denied. The general rule is that you only get one bite at the apple in court on any particular issue, and courts generally dislike motions to reconsider.
Except for a possible motion for reconsideration, I suspect your only avenue of redress is an appeal.
Good luck to you.
You don't tell us what the retaliatory motion was, but retaliatory or not, it may could have been proper. You had a chance to reponse to the motion... I am confused as to why you think you can use discovery to get the court to rule. The demurrer has to be overcome...I think you may be in over your head. You need an attorney
If the demurrer was sustained without leave to amend, and the case was dismissed, and you contend that the judge made a legal error, you need to consider an appeal. You should speak to an attorney familiar with that area of the law as soon as possible, because there are strict time limits that govern your time to appeal.
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