Legal Question in Civil Litigation in California

Late on Vacate Default (but not Default Judgement)

Back in June, I Defaulted on a Tort claim, not realizing the ''Answer'' was required in 30 days. A Court date was set (a few days after the unknown deadline)& I assumed THAT was filing time . The attorney I hired got tied up an extra week in trial, and to both our surprise, by the time we met, it was one day before the default. He tried to reach opposing counsel, but it was too late. The money then froze up when my wife suffered a crippling accident at work, and went on disability, as I am. Not able to afford an attorney (and my wife having corrective surgery plus a few major follow-up procedures), the Default Judgement went through (Oct). I attempted learning the Courts alone, file ''Motion to Set Aside'' myself, but made costly errors and it was denied (Nov)...Discouraged, and sure I was finished in Court, while browsing a law book a few days ago, I discovered legal paths I could have taken...like CCCP 473. Now it's past 6 months from the default- What do I do? Amend my pleading? File a Reconsideration Motion? Quit? I'm sure I could have won if I could have pleaded.


Asked on 1/19/04, 9:09 pm

1 Answer from Attorneys
Alden Knisbacher knisbacher law offices

Re: Late on Vacate Default (but not Default Judgement)

the 6 month limit is from the date of the default judgment, not entry of default; you may still have time to file a motion to set aside the default -- if you are concerned about this being entered (and you probably should be), you really should have an attorney assisting you -- if you will not hire an attorney, make sure you count your days right, and to follow the proper procedural rules. . . The other issue here is the last attorney's involvement -- he/she should have filed the motion to set aside because your attorney fell asleep at the switch -- AND there is a provision of 473 which REQUIRES a court to set aside the default when an attorney submits a declaration of fault -- and it sounds like this attorney should be doing that. . . but you might need to have another attorney convince your prior attorney of that fact . . . there is other advice that could be posted here re: the prior attorney, but it doesn't make sense to post that publicly, as you would be giving up the right to privacy which attaches to communications between attorneys and clients. Feel free to contact at my private email -- and good luck.

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Answered on 1/21/04, 10:18 am


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