3/31/2024 0 Comments Motion to vacate dismissal(The court went on to note that, here, there was no evidence the delay in filing the motion to vacate as the result of bad faith or gamesmanship. “Given that what constitutes a reasonable time requires a case-by-case determination and depends on the discretion of the trial court, we do not accept that this requirement is a prerequisite to a motion under section 473(b) being ‘valid’ for purposes of Rule 8.108(c).” So the court held that the shorter, discretionary deadline does not impact that jurisdictional analysis. The problem here is that the motion deadline here is discretionary, and yet this discretionary deadline to file the motion affects the jurisdictional deadline to file the appeal. No, the motion was still valid to extend the time to appeal, the Court of Appeal held. So does this mean the motion was “invalid” under California Rules of Court, rule 8.108? But, according to the trial court, it was not a “reasonable time,” so the motion was untimely. This was within the six-month outer limit. Here, the plaintiffs filed the motion to vacate a little more than two months after the summary judgment. Section 473(b) states that a motion to vacate a judgment or an order “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. The difficulty here was that the statute has two clauses governing the time of filing. The closer call was whether the motion was timely. “There is no dispute that Plaintiffs’ motion was based on a recognized ground for vacation as it was based on “nadvertence, surprise, mistake, or excusable neglect” pursuant to section 473(b).” Here, the First District Court of Appeal concluded that the plaintiffs’ motion to set aside the judgment, although unsuccessful, was a “valid” motion to vacate judgment under rule 8.108(c). Holy Cross Hospital (1978) 83 Cal.App.3d 1007, 1010.) Here, the motion to vacate was “valid” because it was based on a recognized ground and filed within the statute’s outer deadline. And a “valid” motion means two things: (1) it must be based on a recognized ground and (2) it must be timely.Ī “valid” motion to vacate, for purposes of extending the time for filing a notice of appeal, means “a motion based on some recognized grounds for vacation it cannot be stretched to include any motion, regardless of the basis for it.” ( Lamb v. Rule 8.108 provides that the time to appeal may be extended when a party files a “valid” motion to vacate. The district had authority to support its position. Thus, the district argued, it was invalid, and could not extend the deadline to appeal. Here, the trial court ruled the motion to vacate was untimely. But the district argued that the extension of time, under California Rules of Court, rule 8.108, only applies where a “valid” motion is filed. The plaintiffs argued their time to appeal was extended because of their motion to vacate. By the time the appeal was filed, it was more than 60 days after the notice of entry of judgment had been served. The district moved to dismiss the appeal. Only a “valid” posttrial motion extends the deadline to appeal. The trial court ruled this was too little, too late, and denied the motion as untimely. Counsel declared he had been suffering “flu-like” symptoms that day. The motion was brought under Code of Civil Procedure section 473(b) based on plaintiffs’ counsel inadvertence in failing to contest the tentative ruling and request oral argument. A little over 60 days later, the plaintiffs brought a motion to vacate. The plaintiffs in Arega lost their workplace discrimination case on summary judgment. And that is the case even if the trial court denies the section 473 motion for not being filed sooner. A163266) - Cal.Rptr.3d - (2022 WL 4232631) after the filed a motion to vacate under Code of Civil Procedure section 473(b) on grounds of inadvertence, surprise, mistake, or excusable neglect.įortunately for the appellants, the Court of Appeal held that a section 473 motion to vacate is still “valid” to extend the time to appeal, so long as it is filed within section 473’s outer six-month deadline. But beware: the extension does not apply if your posttrial motion turns out to be “invalid.” That very nearly happened in Arega v. You know that the deadline to appeal may be extended if you file a posttrial motion.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |