Code of Civil Procedure section 473, subdivision (b), contains the attorney-fault provision for relief from default which provides “…the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any . . . resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”
Relief under the statute is mandatory if the conditions are fulfilled. The motion is timely if filed within six months of the entry of default judgment or dismissal. Due diligence is not required. Nor is it necessary for the attorney attesting to mistake, inadvertence, surprise or neglect be attorney of record for the party requesting relief. The statute only requires the affidavit be executed by an attorney who represents the client and whose mistake, inadvertence, surprise or neglect in fact caused the client’s default or dismissal. Continue reading →
It is a fundamental concept of due process that a judgment against a defendant cannot be entered unless he was given proper notice and an opportunity to defend. Code of Civil Procedure section 580 therefore provides the relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint or in a statement of damages as required by section 425.11. Section 425.11 refers to the required statement which must be served prior to entry of default in an action for personal injury or wrongful death. In those actions, the complaint must not allege a specific dollar amount of damages.The purpose of sections 580 and 425.11 is to guarantee defaulting parties adequate notice of the maximum judgment that may be assessed against them. Continue reading →
What is the statute of limitations on a promissory note? The statute of limitations for an action upon any contract, obligation or liability founded upon an instrument in writing is four years from breach per Code of Civil Procedure section 337. However, Commercial Code section 3118(a) provides a six-year statute of limitations for “an action to enforce the obligation of a party to pay a note payable at a definite time.” The period runs from “the due date or dates stated in the note.” Continue reading →
The California Supreme Court holds that Code of Civil Procedure section 1008, which imposes special requirements on renewed applications for orders a court has previously refused, governs renewed applications for mandatory relief under Code of Civil Procedure section 473, subdivision (b), for relief from default based on an attorney’s “sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”
Section 1008 requires a party filing a renewed application to submit an affidavit showing what “new or different facts, circumstances, or law are claimed” to justify the renewed application, and show diligence with a satisfactory explanation for not presenting the new or different information earlier. [See, Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC.]
Mr. Daymude consults with clients and accepts cases involving relief from default and default judgments, including those based upon an attorney’s mistake, inadvertence, surprise, or neglect. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael Daymude at 818-971-9409.
In a lawsuit between an attorney and a client based on an alleged breach of a duty arising from the attorney-client relationship, attorney-client communications relevant to the breach are not protected by the attorney-client privilege. If multiple clients retain or consult with an attorney on a matter of common interest and the joint clients later sue each other, the communications between either client and the attorney made in the course of that relationship are not privileged in the suit between the clients. Continue reading →
Determining when the statute of limitations expires is not always easy. This is particularly true in medical malpractice cases which are governed by two Code of Civil Procedure sections: 340.5 and 364. Additionally, other statutes may act to toll the applicable statute of limitations. One such statute is Insurance Code section 11583. It provides that the applicable statute of limitations is tolled when advance or partial payment is made to an injured and unrepresented person without notifying him of the applicable limitations period. Continue reading →
Code of Civil Procedure sections 12-12c tell you how to count days. The first step is to determine if the days are calendar or court days–a distinction with a difference. The next step is to count either forward, or backward, the correct number of days. The third step is to add days, as required, due to the specific manner of service. The following rules apply: Continue reading →
Must a party, seeking an award of contractual attorney fees pursuant to Civil Code section 1717, also file a timely memorandum of costs? No, writes the court in Kaufman v. Diskeeper Corporaton. The only requirement is that the party file a timely noticed motion. That motion must be served and filed within the time for filing a notice of appeal pursuant to California Rules of Court, Rule 3.1702(b)(1).
The rule is different when attorney fees are fixed by formula without the necessity of court determination. Pursuant to subdivision (e) of Rule 3.1702: “If a party is entitled to statutory or contractual attorney’s fees that are fixed without the necessity of a court determination, the fees must be claimed in the memorandum of costs.”