Legal Question in Civil Litigation in California

overturning court's decision on setting aside a judgment

11 yrs ago I was in a minor rearend collision. The other party wanted me to pay 10K in damages & I refused until I had some receipts/quotes that would substantiate that amount. Unbeknowst to me, they ended up suing me and obtained a default judgment against me in 1996. I just found out about the judgment Dec 2005 when I was mailed a collection notice from their new attorney. I hired a lawyer who claimed I could probably get the judgment set aside on CCP 473.5. even though they had an affidavit for proof of service (I was never served) When the plaintiff submitted their opposition to the motion, I found out they claimed to have personally served me via a private investigator who claims to have set up a meeting under false pretenses in order to serve me (I had moved several times & apparently they could not find a good address for me). We lost in court & the plaintiff was awarded 1K in sanctions. I have come to find out my attorney was inexperienced &probably did not file the motion appropriately. Are there any other avenues I can take? The claim for damages is excessive & w/ the legal interest they have been awarded, will cost $25K to settle and they have liened my home. I just want my day in court to have proper costs assessed


Asked on 7/06/06, 12:46 pm

2 Answers from Attorneys
Terry A. Nelson Nelson & Lawless

Re: overturning court's decision on setting aside a judgment

The case is over. You've already tried the only remedy available, and it doesn't sound like the fault of your attorney that you lost. The facts [their story and documents] determined the outcome. Negotiate a quick payment and get on with life, or they will simply garnish your wages, or attach your accounts and property.

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Answered on 7/07/06, 8:35 pm
Norman Gregory Fernandez, Esq. The Law Offices of Norman Gregory Fernandez & Associates

Re: overturning court's decision on setting aside a judgment

The code is CCP ss 473(b). Based upon the evidence that you articulated, it looks like the Judge believed the Plaintiff. Did you wait until just now to file the 473(b) after receiving the collection notice in 12/05? That may have had something with you losing the 473(b) motion. The key to a 473(b) is filing the motion as soon as possible after becoming aware of the default. Why didn't you turn the case over to your insurance company 11 years ago? You could appeal the decision, however the likelihood of winning on appeal is not that good, and there are deadlines that must be met.

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Answered on 7/08/06, 1:46 pm


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