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Motion Filed by Plaintiff, hearing 11/10/2010


ADSOFT
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The plaintiff has filed a motion to have some sanctions levied on me reversed and to strike my answer and get a default judgement. ... ???

Turns out that the court ordered the plaintiff to inform me of hearing date for the sanction levy and I was never served with the notice.

Do I have to file my response/defense to halt his motion to have my answer stricken? Or can I bring my evidence to the hearing and show the judge that I should have never been sanctioned since plaintiff failed to inform me of hearing date as ordered by the court.

The hearing is less than 30 days away so I'm not sure if the is a time limit to filing a response to his motio

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I do not know what state you are in, and i am not an attorney, but to the best of my knowledge there is a limited time to respond to motions and pleadings, so my suggestion would be to file an objection as soon as you can just to be safe. I hope someone more knowledgeable can help you with a more definite answer.

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http://www.avvo.com/legal-guides/ugc/california-motions---waiver-by-appearance-or-failure-to-object

If you are served with a motion in a California Court, and you want to object to the motion being heard on the merits, then you must file objections at the first available time. If you don't you waive your right to object on the grounds not raised.

I'm not 100% sure what this means, but I think it means I have to file.

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Here is the whole article, can some people read it and give opinions

If you are served with a motion in a California Court, and you want to object to the motion being heard on the merits, then you must file objections at the first available time. If you don't you waive your right to object on the grounds not raised.

As stated in Tate v. Superior Court (1975) 45 Cal.App.3d 925:

(5) It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion.

See, for instance, Carlton v. Quint, 77 Cal.App.4th 690, which states:

"[41] The record in this case reveals that, his claim of inadequate notice and improper service notwithstanding, Carlton filed an opposition to the motion for summary judgment eight days before the hearing. Moreover, Carlton appeared and argued at the summary judgment hearing. At no time did he request a continuance of the summary judgment hearing or contend he was prejudiced by inadequate notice or service. He simply stated that service had not been made in compliance with Code of Civil Procedure section 1011.

[42] "It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. (Citations.) This rule applies even when no notice was given at all. (Citations.) Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had nonotice of the motion or that the notice was insufficient or defective." (Tate v. Superior Court (1975) 45 Cal.App.3d925, 930

In Carlton v. Quint, 77 Cal.App.4th 690, 91 Cal.Rptr.2d 844 (Cal. App. Dist.2 01/14/2000) the Court states:

"[44] In this case, as indicated, despite his claim of inadequate service and notice in his opposition to the motion and at the summary judgment hearing, Carlton did file an opposition to the motion, appeared and argued at the hearing, never requested a continuance of the hearing and never claimed prejudice by reason of insufficient notice or service. Under these circumstances, we conclude Carlton waived any claim of inadequate service or notice assuming, without deciding, that claim had any merit.

[45] This court understands the dilemma faced by an attorney who claims his client was not properly served with motion papers and/or that inadequate notice of the hearing was received. If counsel is convinced his/her legal position is correct, he/she may appear at the hearing without filing a response to the motion and request a continuance for the purpose of preparing a proper response. If counsel makes a complete record relating to both the defective service and/or inadequate notice and the inability to prepare a proper response, and the court denies the continuance, the record will be well preserved for any future writ proceeding or appeal.

[46] If counsel is unwilling to take the chance that a continuance will be granted, he/she should file the best opposition possible under the circumstances. The opposition should include counsel's position on the defective service/inadequate notice issue, as well as the merits. The opposition should contain a complete discussion of counsel's position as to why a more complete opposition was not able to be filed (e.g., because the defective notice of motion did not give counsel adequate time to prepare a response). Counsel should then appear at the hearing, object to the hearing taking place because the service was defective and/or inadequate notice of the hearing was received; again explain to the court the prejudice that has been suffered by reason of the defective service and/or inadequate notice; and request a continuance of the hearing so that a proper response to the motion may be filed. Obviously, if the court denies a continuance, counsel should be prepared to argue the motion on the merits. If, however, the steps described in this paragraph are taken, the record will be well preserved for any future writ proceeding or appeal.

[47] None of these steps was taken by Carlton in this case. Although he did raise the issue of inadequate service in his opposition and at the summary judgment hearing, he nevertheless filed a response to the motion for summary judgment, never claimed he did not have adequate time to prepare a response, appeared at the hearing, argued the merits, never requested a continuance and never claimed he was prejudiced by the defective service or inadequate notice of hearing. As stated, under these circumstances, we conclude Carlton waived any alleged defective service or inadequate notice."

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Filing an objection cannot hurt you in any way.But based on all this information you have to file an objection as soon as possible, then show up to hearing and object to the actual hearing being held on their motion based on the fact that they have never served you with a proper notice. I'd say write a good oppositionto their motion, find some good case law, quote CA CCP on proper notice and service of motion, etc., and try to file it and serve them a copy asap

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The hearing is less than a month away.

Does the following mean that worst case, I can ask for a continuince at the hearing to prepare my motion of objection.

"[41] The record in this case reveals that, his claim of inadequate notice and improper service notwithstanding, Carlton filed an opposition to the motion for summary judgment eight days before the hearing. Moreover, Carlton appeared and argued at the summary judgment hearing. At no time did he request a continuance of the summary judgment hearing or contend he was prejudiced by inadequate notice or service. He simply stated that service had not been made in compliance with Code of Civil Procedure section 1011.

Also does prejudiced in the above paragraph mean that the defendent was influence not to respond to the motion for summary judgement because he was not served.?

btw, that sucks, they file a motion for summary judgement and don't send you a notice, then they don't allow you defend yourself, wtf?

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My experience in California Courts is you file an answer, that refutes and states your side of the side of the case. I beleive you have to file and serve your answer with-in 10 days of hearing to meet timelines, but check this California Rules of Court.

If you don't they will rule as unopposed motion and you will loose. In my county they post tenative rulings the day prior to hearing date and you must contact the court by time certain the day they post tenative ruling to set for motion hearing the next day if you don't like the tenative ruling.

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My experience in California Courts is you file an answer, that refutes and states your side of the side of the case. I beleive you have to file and serve your answer with-in 10 days of hearing to meet timelines, but check this California Rules of Court.

If you don't they will rule as unopposed motion and you will loose. In my county they post tenative rulings the day prior to hearing date and you must contact the court by time certain the day they post tenative ruling to set for motion hearing the next day if you don't like the tenative ruling.

Do you know if I can ask for a continuence at the hearing worst case if don't happen to file.

I'm not very savvy in civil procdure, but it seems that in some instance, defendent might need more than 3 weeks to prepare a defense for a motion. If the plaintiff set trail for One Month, defendent might need more time to prepare a defense?

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Here is some stuff on asking for continuences and not showing up to hearings.

How do I get a continuance?

If you have a good reason to change the hearing to a later date, you can write to the court and ask to change your hearing date. Lawyers call this a "continuance". Send a copy of your letter to the other party.

In general, you have to pay a $10.00 fee when you send your letter. But you don’t have to pay a fee if the defendant:

Asks for a new hearing date because he or she wasn't served properly, or

Asks for a continuance before the plaintiff served them with the claim.

You have to have a good reason to change your hearing date. The court will usually change your hearing date if:

The plaintiff hasn't had a chance to serve the defendant,

The defendant wasn't served enough days before the hearing,

The defendant filed a cross claim, but the plaintiff wasn't served at least 5 days before the hearing.

Exception: If the defendant was served less than 15 days before the hearing date, the defendant can serve the plaintiff until the day before the hearing.

The court thinks that the parties want to try mediation or another form of alternative dispute resolution.

If you're not sure if your reason is good enough to change the hearing date, ask a small claims advisor.

What happens if I miss my court hearing?

If you are the plaintiff and you do not go to court, your case will probably be dismissed, unless there are special circumstances.

If you are the defendant and you don’t go to court, the plaintiff will probably win after they present their case.

The person who didn’t go to the hearing can file a motion to vacate the judgment if they have a good reason for not going.

Damn, the plaintiff didn't show up at the last hearing. I should have asked for a dismissal.

Is it too late to file a motion for dismissal since they didn't show up at the privious hearing?

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Let me get the whole picture: They sued, you answered. Somethign must have happened in between for them to file a motion for sanctions levied against you, since that is usually done for abusing judicial system or violating rules of procedure. Can you describe exactly which pleadings were submitted by both parties? How and when did you find out about their motion after they failed to serve you? The hearing that is coming up...it is the hearing for this motion with which you wree not served?

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its too late to file a MTD since they filed pleadings already after failure to appear, thus showing that they are still participating in this action.

you alsosaid "The plaintiff has filed a motion to have some sanctions levied on me reversed". if they are asking to basically void these sanctions, why would you object to that? or maybe i misunderstood something...

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its too late to file a MTD since they filed pleadings already after failure to appear, thus showing that they are still participating in this action.

you alsosaid "The plaintiff has filed a motion to have some sanctions levied on me reversed". if they are asking to basically void these sanctions, why would you object to that? or maybe i misunderstood something...

What happend is I didn't answer discovery. In another county they give you a trial date upon filing your case. I turns out that each county has local rules.

Plaintiff filed a motion to compel and I answered, he asked for sanctions for my failure to respond to discovery.

I asked the judge to wave sanctions, and judge said that sanctions would be adressed at next hearing. Plaintiff asked for continuence on next hearing, but and court sent me a letter that continuece was set for next hearing, but failed to mention that sanctions would still be heared. Turns out the day of the hearing for sanctions(which I was not told of by court) court ordered that plaintiff should send me a notice that hearings for sanctions should be delayed agian to july 1. On July 1st court ordered sanctions of $280 but not date was specifed when I would have to pay. I thought you paid when you lost case. Now, Plaintiff want to reverse the $280 fee, and is asking for $800 and to omit my answer and ask for default since I didn't pay sanction fee.

I was going to agrue at the previous hearing that there was a mix up and that plaintiff never sent me a notice, but Judge was sick and a clerk was handling everything. Clerk said hearing was to set trial date, so I didn't have time to argue against sanctions. Plaintiff didn't show up, instead 1 week later filed motion to reverse the $280 and ask for both larger sanctions and a default judgement to stike my answer?

I figure all I have to do is show the judge that plaintiff never served me notice of the hearing for sanctions. Also the court document specifically says that hearing was rescheduled and judge specifically said that sactions would be address at next hearing.

... it's pretty obvious that the plaintiff blew it, and possibly the court by not letting me know that the Management hearing was rescheduled but not the hearing for sanctions.

I'm not sure it that is clear?

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It is much more clear now. If you did not answer discovery or failed to object to it or ask for continuance, you pretty much agreed with their claims, so thats where the request for default comes from...

Well, maybe I wasn't very clear. I did answer discovery but I was late, so the plaintiff asked for sanctions because I answered late. Like I mentioned the hearing for the amount of the sanctions(for answering late) is where the plaintiff failed to notify me, hence that is my defense to have santion fees reversed and block motion for default.

I answered discovery but answered late.

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Do you know if I can ask for a continuence at the hearing worst case if don't happen to file.

I'm not very savvy in civil procdure, but it seems that in some instance, defendent might need more than 3 weeks to prepare a defense for a motion. If the plaintiff set trail for One Month, defendent might need more time to prepare a defense?

If you are going to ask, it had better be prior to the hearing date. Not saying you can't show up and ask but as jammed as the courts are I would think they will take a hard line.

I am no expert on civil procedure either, but this is where the JDB and CA Attroney's really take advantage of pro se defendants. It is imperative that you know general rules of timing and meet those deadlines. It is part of plaintiffs strategy you miss a deadline and they attack, now you are spending time on trying to overcome sanctions that have gone for 250 to 800, and not working on defending the actual suit.

Reaserching Procedure and Rules of Court should always be a first step, then finding a the law that supports your theory.

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Well, maybe I wasn't very clear. I did answer discovery but I was late, so the plaintiff asked for sanctions because I answered late. Like I mentioned the hearing for the amount of the sanctions(for answering late) is where the plaintiff failed to notify me, hence that is my defense to have santion fees reversed and block motion for default.

I answered discovery but answered late.

==================================

If you're in California. Print out the register of actions. You need to see what's going on in your case. From your various threads I get the impression you've let this litigation get away from you.

1. First thing to remember is you never ever ever EVER let your case be called and you not make a personal appearance. Some will say if you're not required you shouldn't show up. This is a fight. You don't win a decision by phoning it in. If you aren't willing to do the work be like some of those here and take your default. Let em lien your property.

2. If you're in California research the law firm and the plaintiff. Pull cases with both. Understand how they fight. You can't beat someone if you don't know their moves. These bastards follow the same process time and time again. Learn what they do and out think them.

3. If you're in California file a motion for leave to file a cross-complaint. Do your research. If this is important to you then find grounds for suit. Don't you remember when they called you 37 times every day in 2009? Sounds like violations of various California statutes to me. They need to argue in open court why it was ok to call you 38 times every week in 2009. My point, this is your life. Take control of this litigation. Bring the pain to them based on your work. Do the research. Plead what you can prove or they can not disprove. Either way works. Run up their legal fees and they will get ghost. Someone whips my a$$ 3 times costing me $1500 or more I'd leave them the hell alone because plenty of folks will let me take a default. xdancex

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I've seen them go for striking answers as a means to throw the Defendant off base, EVEN IF the Defendant's answers were meritorious. They do whatever they can to maximize their profit and do the least amount of work. Skippy and Tigre are right ADSOFT; they are trying to distract you from defending your suit.

Now since you are a pro se litigant and have met all other deadlines and followed the CA Rules of Court, you can object to their motion for sanctions and their motion for summary judgment. Look up EXCUSABLE neglect. Since you answered discovery but answered late, there should be no reason why they couldn't accept your answers. As to requests for admissions...if you didn't turn them in on time then that is seen as a tacit agreement to their claims. On the other hand, courts are usually forgiving the first time around, which is why plaintiffs forever come unprepared and are granted continuances seemingly indefinitely.

Rather than obsess on getting a continuance, you need to look at the CCP numbers that justify their moves to strike your answers and sanction you. What does the CCP say SPECIFICALLY?

I'll give you an example that should help... We were sued last year by a supposed OC for well over twenty five thousand dollars in CA Superior Court. We answered and also requested a Bill of Particulars. They took their sweet time and sent us an inadequate Bill that wasn't verified and their were other issues with it. We went to the case management conference and filled out the form, they did not serve us a form so at that point we could have gotten sanctions against them for violating a LOCAL rule of court. We went to the settlement conference and served them our form but they didn't fill their settlement conference form out and didn't show to the conference. A hearing was set for a month later for an order to show cause why they didn't show to the settlement conference.

A few days later we get this huge package with the same BoP that they sent before and an inflammatory declaration from an attorney at the firm (who we never talked with) asking to strike our answer for being a 'non answer' with inadequate affirmative defenses AND for sanctions appropriate to the court for abusing the discovery process! He asserted that we abused discovery by asking for clarification on their inadequate BoP. I was terrified when we received all this stuff and fired off a declaration of my own and feverishly faxed it to the law office the day of the hearing. Turns out that these attorneys had absolutely NO intention of showing up to the hearing. Instead they tried to bully us into giving up before the hearing.But we didn't give up. And the judge dismissed the case!

Turns out they violated a LOCAL RULE OF COURT when they failed to show to the settlement conference, which was an automatic dismissal;) The point I'm trying to make is that these tactics are not new but they are specifically used to bully, intimidate and break you down. For them, it is a numbers game. For you, it is your livlihood.

Send me a PM with more details if you can scan in the note they sent that'd be great because I have a feeling you are in a better position than you think.

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