Legal Question in Real Estate Law in California

Re: Why the judge denies us for the cost of filing a default?

many times a case takes on a life of its own. i recently was involved with a case that was not cost effective but resulted in a judgment for my clients for 100% of what they asked for and what they had comming. the legal process is sometimes time conuming and once started has numerous twists and turns which are costly and not under the control of your attorney. hind sight is 20/20. i agree with him/her as to the default set aside motion as the law is clear that the court are required to set aside a default if timely filed and has good cause attached. rarly have i been succesful in opposing these motions when quickly made by the oppositon. that is not to say yours may be that odd case. i have been practicing law in the s.f. bay area for over 30 years and have an expertise in real proprerty law and cannot comment on the question of the competancy of your lawyer without many, many more facts. do not look to changing attorneys too fast but consult personally with one to assure yourself in this situation if it would make you feel more comfortiable

Re: Why the judge denies us for the cost of filing a default?

In addition to Mr. Olden's observations, I always believe that, with issues like this, an early mediation could be very cost effective.

Re: Why the judge denies us for the cost of filing a default?

I'll try to answer your question. Your question states "[o]ur attorney advised us of no opposition to the set aside." If your attorney filed no opposition to the defendants' motion to set aside the default, you should not have incurred any "cost" for filing the request for default. The courts do not charge a fee for filing a request for entry of default. However, your attorney may have charged you for preapring the request for entry of default and may have charged you for reviewing the defendants' motion to set aside. These charges, however, are NOT costs, but are attorneys fees.

In California the general rule is that each party must pay his/her own attorneys fees, unless a contract or statute provides for attornys fees to the successful party. The winner of a lawsuit, even if not entitled to attorneys fees, is always entitled to its costs, which include the fee paid to file papers with the court such as a complaint, or various motions.

Assuming you are successful in the lawsuit, you will be entitled to your costs and may be entitled to your attorneys fees. However, you will not get those fees and costs back until after the lawsuit is over.

Re: Why the judge denies us for the cost of filing a default?

As you can see, there are many situations where a litigant has to bear his or her own costs. Sometimes they can recover those costs and expenses when they win, but often, not all. Of course, if they lose, they cannot recover.

Judges have a lot of experience in deciding cost and fee allocation questions. They areise in almost every case. The judge is probably right.