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Basis for appeal question.
Situation.
Denied order to set aside and denied order for reconsideration of denied order to set aside.
Vacating which of the orders: on motion to set aside or on the motion for reconsideration is the basis for appeal. Why?
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answered on Dec 17, 2024
The order denying the motion to set aside is the proper basis for appeal, not the order denying reconsideration. Here's why:
The order denying the motion to set aside is considered the substantive ruling that directly affects your rights and obligations. This initial denial is what... View More 
Why exactly, with pursuit to ensure the justice is served, court would not construe plaintiff's allegations that settlement was not achieved to be equivalent to plaintiff's request to enforce informal settlement?
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answered on Dec 17, 2024
From a legal perspective, these sections of California's Code of Civil Procedure address distinctly different matters that courts treat separately despite their apparent similarity.
The courts distinguish between allegations that a settlement was not achieved and requests to enforce... View More
CCP 1008 (c) provides in relevant part. If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.
In conjunction with section 646.6(a) and section1008 (c) does... View More
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answered on Dec 16, 2024
Under California law, CCP 1008(c) does grant courts broad discretion to reconsider prior orders based on changes in law, but this power has specific limitations regarding settlement enforcement.
The court's authority to vacate a dismissal and enforce a settlement agreement on its own... View More
App-003 was timely submitted to superior court. Appeal unit of Stanley Mosk court found inconsistency and requested to resubmit. Case was already transferred to 2d district court of appeals.
Is it according to law - to serve amended App-003 to 2d circuit of appeals, with copy on served... View More
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answered on Dec 16, 2024
Yes, you can serve the amended APP-003 (Notice of Appeal) to the Second District Court of Appeal with a copy to the superior court. This procedure is governed by California Rules of Court, Rule 8.100(a)(2), which allows for amendments to notices of appeal.
When the superior court finds... View More
Is Opening brief required to be served on a party to lawsuit, that is not respondent?
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answered on Dec 16, 2024
In California appellate procedure, you generally need to serve your opening brief on all parties named in the lawsuit, even if they're not actively participating as respondents in the appeal. This requirement helps ensure all parties stay informed about the proceedings that could potentially... View More
Is form App-003 required to be served on a party to lawsuit, that is not respondent?
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answered on Dec 16, 2024
Based on California Rules of Court, Form APP-003 (Proof of Service) should be served on all parties to the lawsuit who are part of the appellate proceedings, regardless of whether they are respondents or not.
The purpose of this form is to prove that you have properly served your appeal... View More
service of any appeals documents on party to lawsuit, NOT respondent
Is service of any appeals documents on party to lawsuit,
but not respondent to lawsuit,
is required?
What rules define that?
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answered on Dec 16, 2024
In California appellate proceedings, you must serve all appeal documents on all parties who appeared in the underlying action, not just the respondent. This requirement is outlined in California Rules of Court (CRC) Rule 8.25(a)(1).
The rules require you to serve your notice of appeal,... View More
What is statute/rule that define settlement formation and enforcement?
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answered on Dec 16, 2024
The key California statutes governing settlement agreements are California Code of Civil Procedure (CCP) § 664.6 and California Civil Code § 1542. CCP § 664.6 allows parties to enforce settlements by summary motion if the agreement is signed by all parties or made orally before the court.... View More
dismissal was based on intention not filed with court, and matter was deemed to be settled, though intention was not complied with.
In this case is it de novo standard for review of appeal as primary legally,
with document of evidence of intention that was not settled - secondary... View More
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answered on Dec 15, 2024
Based on the scenario you've described, the de novo standard of review would indeed be appropriate as the primary standard. When reviewing a dismissal that hinges on questions of law - like whether an unfiled intention affects settlement status - appellate courts apply de novo review.... View More
Is such dismissal the same than dismissal on plaintiff's motion?
Is judge required to reference statute Upon which dismissal was filed - in the court's order of dismissal?
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answered on Dec 15, 2024
In California, when you request dismissal by filing with the clerk, it is functionally equivalent to dismissing through motion, though the processes differ slightly. The key difference lies in timing and procedure - filing with the clerk is typically more streamlined for voluntary dismissals under... View More
These amended notices are REQUIRED to be filed at earliest when change is requested by intermediary court, or it is LEGAL to serve/file together with APP-004?
What rule defines due date if any?
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answered on Dec 15, 2024
The timing for filing amended APP-002 (Notice of Appeal) and APP-003 (Designation of Record) forms in California depends on the specific circumstances of your case.
When the Court of Appeal requests changes to these forms, you should file the amended versions as soon as possible after... View More
1. App -002 and App-003 are filed with superior court.
2. Amended App-002 and App-003 can be filed either in superior court, or in court of appeals.
3. Amended App-002 and App-003 must be filed with court of appeals.
3. App-004 must be filed in court of appeals.
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answered on Dec 15, 2024
The filing requirements for California appellate documents can be confusing, so let's break these statements down clearly.
For basic notices of appeal, APP-002 (Notice of Appeal) and APP-003 (Notice of Cross-Appeal) must indeed be filed with the superior court, making statement 1 true.... View More
Appeal is taken from order not based on abuse of discretion standard, but primarily de novo standard with interconnected clearly erroneous minimal deference as apply to question of fact.
What common law precedents are in relevance?
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answered on Dec 15, 2024
The de novo standard of review in California appeals has several key precedential foundations worth considering. The landmark case People v. Louis (1986) 42 Cal.3d 969 established that appellate courts must examine legal conclusions independently, while still giving some deference to factual... View More
What precedent is applicable for appealability of court's order denying plaintiff's motion to set aside dismissal when there was not settlement?
Informal Intention that apparently was not achieved cannot constitute settlement under any theory.
Plaintiff entered dismissal... View More
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answered on Dec 15, 2024
In California, an order denying a motion to vacate a dismissal is generally appealable as a post-judgment order under Code of Civil Procedure section 904.1(a)(2). The leading case, County of Santa Clara v. Support, Inc. (1979) 89 Cal.App.3d 687, confirms this principle.
When there was no... View More
Who should be served? What rule defines recipients of service?
Shall party to lawsuit that is NOT respondent to appeal be served?
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answered on Dec 15, 2024
Under California Rules of Court, rule 8.25(a), you must serve all documents filed in an appellate proceeding on all parties to the appeal. This includes the appellant's notice of appeal (APP-002), notice designating record on appeal (APP-003), and the civil case information statement... View More
Can amended APP-002 and APP-003 be filed with reviewing court (court of appeals) with APP-004, when APP-004 is due?
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answered on Dec 15, 2024
In California appellate procedure, you can generally file amended notices (APP-002 and APP-003) along with your Civil Case Information Statement (APP-004) when the APP-004 is due, which is typically within 15 days after the superior court clerk serves notification of the filing of the notice of... View More
2d calif. district court of appeals is reviewing court. What rule defines how amended documents (Notice Of Appeal and Notice designating record) and APP-004 must be filed with 2d distr. Court of appeals?
If documents are allowed to be served on court of appeals by mail, what rule defines... View More
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answered on Dec 15, 2024
For filing amended notices and APP-004 with California's Second District Court of Appeal, you'll need to follow California Rules of Court (CRC) Rule 8.100, which governs filing notices of appeal, and Rule 8.120-8.124 for designating the record.
Regarding service by mail, CRC Rule... View More
Service filing brief. Is it correct conclusion that briefs must be either electronically filed; or served (By mail) NOT on 2D district california court of appeals, but on Supreme Court (California Supreme Court?)
that transfers documents to 2d District court of appeals?
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answered on Dec 15, 2024
For cases in California's Second District Court of Appeal, you have partially correct but slightly misaligned understanding of the filing process.
Electronic filing (e-filing) is mandatory for most parties in the Second District Court of Appeal, unless you qualify for an exemption. If... View More
Request for relevant authorities in regard to plaintiff's appeal of court's order denying plaintiff's motion to set aside dismissal of legal action against one of defendants. (Section 904.1(a) (2).)
Dismissal was entered as to all complaint (section 581(c)) on plaintiff... View More
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answered on Dec 14, 2024
Here are relevant California authorities for your situation regarding appealing a denial of motion to set aside dismissal:
Code of Civil Procedure section 473(b) provides grounds for setting aside a dismissal, including mistake, inadvertence, surprise, or excusable neglect. The court in... View More
I request relevant authorities in regard to plaintiff's appeal of court's order denying plaintiff's motion to set aside dismissal of legal action against one of defendants. (Section 904.1(a) (2).)
Relevant standard of appeal review - fact based.
Dismissal was entered... View More
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answered on Dec 14, 2024
When appealing a denial of a motion to set aside dismissal, the appellate court applies an abuse of discretion standard of review since such motions are inherently discretionary.
Key California authorities include Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257-258,... View More
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