Points and Authorities on Notice of Intent

[DecentDad]

Hi Soc,

Still can't get through to my atty to get confirmation he'll file my notice of intent to move for vacated judgment and new trial.  Today is my 15 day deadline.

I'm preparing to jump to pro per in a couple hours if necessary, have my sub-out form all ready.

I'm also preparing my notice of intent.  I'm assuming it's just a normal Notice of Motion form, checkbox "Other" and write in "Notice of Intent" under other, correct?

Do I need a separate pleading for the Notice of Intent?,I guess may only be a sentence or two long?

Then attach points and authorities?  Per CCP 659 "...designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court or both"

Else, would I just combine the Notice of Intent pleading with the points and authorities supporting it into one document?

If all that process is correct, would mind looking over the following brief Points and Authorities attachment?

-------------------------------

MEMORANDUM OF POINTS & AUTHORITIES FOR NOTICE OF INTENT
TO MOVE FOR VACATED JUDGMENT IN PART AND MOVE FOR NEW TRIAL

I.  This notice is filed timely
      
Code of Civil Procedure Section 659.2 states:

"2.  Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest..."

The judgment was entered on October 20, 2004.  The clerk mailed the Notice of Entry of Judgment on October 20, 2004.  Fifteen days later, on November 4, this notice of intent is filed.

      
II. Motion for Vacated Judgment in Part and Motion for New Trial will be supported by affadavits showing insufficiency of evidence to justify the judgment

Code of Civil Procedure Section 657 states:
"657. The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:..."

Code of Civil Procedure Section 657.6 states:
"6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law."


Respectfully submitted,

------------------------


Thanks much for your feedback.

DD

[socrateaser]

You don't need to tell the judge the law about this. If you're moving to vacate judgment then you just use a plain paper pleading -- you are not filingt a notice of motion, you are filing a notice of "intent" to file a notice of motion. Just do this, and remember you need to SERVE the other party and attorney today, too, so don't forget a cert of service by mail. I suggest you fax the notice to the attorney and to your attorney:

YOURNAME
Respondent, Pro Se
ADDRESS
CITY, STATE ZIP
CONTACTFONE

California Superior Court
County of Los Angeles

In re: Marriage of _____

HERNAME,
Petitioner

and

YOURNAME
Respondent,

Case No. ??

NOTICE OF INTENT TO MOVE TO VACATE JUDGMENT (CCP 663)

To, Petitioner, PETITIONERSNAME, and her attorney of record:

You are hereby notified that Respondent, RESPONDENTSNAME, intends to move that the court vacate its final judgment in the above-entitled case, entered, ??/??/??, on the grounds that said judgment makes child support orders upon terms and conditions that are not supported by the facts of the case, the stipulations of the parties, or the State Uniform Guidelines.

In particular, the court's final judgment awards daycare and preschool tuition costs to Petitioner as child support, said costs, not having been stipulated to by the parties, nor supported by facts demonstrating that said child care costs are related to Petitioner's "employment or to reasonably necessary education or training for employment skills" (CFC 4062(a)(1)), and without a statement from the court as to the reasons why it has ordered a deviation from the guidelines.

Moreover, the judgment awards child support to Petitioner, not based on the stipulations of the parties, nor supported by facts demonstrating the actual or imputed income and/or expenses of the parties, and without a statement from the court as to the reasons why it has ordered a deviation from the guidelines.


Dated this ____ day of _________, 2004

By:


_______________________
YOURNAME
Respondent, Pro Se

[DecentDad]

Greatly appreciate all your time on this.

Would all the tea in China PLUS Japan's lure you to L.A.?

DD

[DecentDad]

Attorney finally got back to me a few minutes ago, took the draft that I had sent over to him (i.e., what you did above), and said that it's being filed under code 473, rather than 663.

473 suggests that the attorney is acknowledging his hand played a part in this?

DD

[socrateaser]

>473 suggests that the attorney is acknowledging his hand
>played a part in this?

Yep, your attorney is basically saying it's his fault. 663 basically implies that it's the "judge's" fault, so, from that standpoint, your attorney may be trying to avoid that distinction, but he's also puting himself and you at risk of (1) being sanctioned by the court for screwing up, and (2) for the court saying, "You screwed up, so I'm not changing anything."

However, 473, is a set aside based on your or your attorney's mistake, inadvertence, surprise, or excusable neglect. So, I guess you must have been pretty "surprised" to discover that the judgment contained substantial orders that you didn't agree to in advance. Also, 473 is a pure motion, not requiring an advance notice.

I think that you would have better preserved your rights, and your chances under 663, because you are arguing that the judgment cannot stand, even if the parties agreed to it, as it violates federal law, by not stating the reasons for deviating from the statewide uniform guidelines. But, he's your attorney, and everyone uses 473 to set aside in CA family court.

And, frankly, EVERYONE is guilty of screwing up on this one. Your attorney for objecting late, the other attorney for improperly adding unagreed-to text to judgment, and the court for just rubber stamping the judgment without actually reviewing it to see if it comported with the law.

And, of course, I ALMOST screwed up by giving you a 6 month window, when it was actually 15 days, but under 473, I it's 6 months anyway.

Be interesting to see what happens now.

[DecentDad]

.