CHALLENGING THE JUDGMENT AT THE TRIAL LEVEL
Motion for Reconsideration (Didn’t get the orders you wanted after a hearing?)
Frequently parties in litigation think they get a ‘second bite at the apple’ when they’ve gone through a trial or hearing and didn’t get the orders they want. Well, you don’t. In certain circumstances you can ask a trial court to “reconsider” its ruling. In limited circumstances you can make such a request at the trial level without undergoing the arduous, expensive, and time consuming task of actually filing an appeal.
A party's application for reconsideration must be based upon new or different facts, circumstances or law.
You must make the request for reconsideration to the he same judge or court that made the order for which reconsideration is sought.
Not only is it difficult to prove ‘new or different facts, circumstances or law’ it is very difficult to prepare and file the motion timely. The motion for reconsideration must be made within 10 days after service upon the party seeking reconsideration of written notice of entry of the order.
Similar motions are called Motions to Vacate Judgment or Motions for New Trial. These are rare but may apply to your case.
Motion to Set Aside (Didn’t get the orders you want because you failed to respond or you want to fix or do away with a deal gone wrong?)
Sometimes parties forget to file a Response in their case. In this event they may be “defaulted”. This is because the Court presumes they are impliedly not contesting the action by not filing a Response. You have 30 days to file your Response after being served a summons. In the event you forget to file your Response and the Petitioner defaults you then you may have to move to ‘set aside’ the default.
Sometimes parties make a deal. That deal gets converted into a Court order. Sometimes that order needs to be set aside because of unforeseen circumstances.
Cal. Code of Civ. Procedure § 473(b) empowers the trial court, upon “any terms as may be just,” to relieve a party from a “judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” [CCP § 473(b) (emphasis added)]
Relief under this provision ordinarily is discretionary with the trial court and must be done within six (6) months.
If you need an experienced family law attorney to assist with your Motion for Reconsideration and/or your Motion to Set Aside call our office today for a free phone consultation.