Van Nuys, CA asked in Civil Litigation for California

Q: Am being sued & a judgement was made against me for not showing but was unaware of lawsuit. Not responsible for debt

Am being sued for Breach of Contract but i have nothing to do with the loan agreement between my ex boyfriend & his mother. I signed as a witness only & was never any kind of business partner with my exboyfriend (co-defendant). A judgement was made against me for not showing up because i didn't know i was being sued because i was served by publication. I don't get or read the newspaper. I'm trying to file a motion to set aside & vacate judgement but also had court today which i missed because am too sick. I also believe the Plaintiff altered the original contract because she submitted it as evidence but then had that Exhibit destroyed just before the judgement was made. I couldn't find it in the case file & this is the type of thing the Plaintiff would do. Can i still file the papers? What can i do?

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1 Lawyer Answer
Joseph Franklin Klatt
Joseph Franklin Klatt
Answered
  • La Jolla, CA
  • Licensed in California

A: You can move to set aside a default judgment under Code of Civil Procedure 473(b) for "mistake, inadvertence, surprise, or excusable neglect" but the outside time limit to do so is six months. After that time, the Court has no power to entertain the motion. That you say you are "trying to file" the motion suggests that you haven't. Get to it, or you may be too late.

I am not sure what Court date you missed or why you missed it, but saying you are sick after the fact is a bad excuse and will not endear you to the Court. It is about as convincing to the judge as "the dog ate my homework." If you have a gunshot wound, then maybe, but you better document it and get it in front of the Court. I know I have gone to Court so ill that I had to physically hold myself up with the edges of counsel table and just hid the fact. After the judge left the bench, my legs gave out on me. I dropped into counsel chair, and it was a good five minutes before I could get myself up and down the stairs and out of the Court. Don't miss Court. Just don't do it.

Arguments that contracts were altered come across as desperate and dishonest. I have seen it happen, rarely, but unless you have an expert graphologist or other forensic expert, expect skepticism. Finally, a bit of practical advice on advocacy: the more you are explaining, the worse you are doing. You need a clear concise reason for whatever argument you make, not a laundry list of theories and grievances. Find one, make it good, and stick with it.

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