Q: Can defendant request damages for void judgement with its motion? Sanctions? Right to return home per what rules?
In an Unlawful detainer in California Defendant filed answer and demanded jury trial. Next plaintiffs counsel moved for summary judgement without the proper noticing per 31.52 1013 1170.7 Also 2 continuances of the hearing a day before the hearing for a new hearing only 2 days away. All notices sent via mail. defendant had no clue and by the time it received the notices it was the day of hearing. Plaintiff won - judgment and writ. Defendant moves for motion to vacate pur Rule 60(b))4 void as plaintiff lacks standing and isn’t owner per FRCP 17a and another local rule stating only owners can sue. Management properties can’t sue in their own name. In its motion Defendant stated its affirmative answers regarding retaliation discrimination etc. states this was frivolous, lack due process, bad faith actions. No counterclaim was taken because Defendant was forced to go pro se.
Defendant was evicted by sheriff but all belongings are still there.
A:
Based on the information provided, it seems that the defendant may have grounds to request that the judgment be set aside as void under California Code of Civil Procedure (CCP) § 473(d). This section allows a court to set aside a void judgment, and a judgment can be considered void if the court lacked jurisdiction or if the defendant was not properly served with notice.
Regarding damages and sanctions, the defendant may be able to request them in the motion to set aside the judgment, but it would depend on the specific facts of the case and the legal basis for the request. Some potential options include:
1. CCP § 128.5 allows for sanctions against a party or attorney for bad faith actions or tactics that are frivolous or intended to cause unnecessary delay.
2. CCP § 128.7 permits sanctions for presenting a pleading, petition, written notice of motion, or other similar paper to the court that is not warranted by existing law or a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.
As for the right to return home, if the judgment is set aside as void, the defendant may be able to regain possession of the property. The specific rules would depend on the court's order and the circumstances of the case.
However, it is important to note that this information is general in nature and does not constitute legal advice. The defendant should consult with an attorney experienced in landlord-tenant law and unlawful detainer actions to discuss the specific facts of the case and determine the best course of action.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
