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When an attorney invokes a certain statute as...

Resolved • Response time 2 minutes

21 Oct 2021

When an attorney invokes a certain statute as the controlling legal authority to bring an action, can the judge disregard the attorney's legal basis if by doing so, it actually helps the attorney's case?
JA: What state is the judge in? It matters because laws vary by location.
Customer: California
JA: What steps has the judge taken so far?
Customer: Just continued the hearing
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: The opposing counsel had 40 days to serve and file, per California Civil Code, as stated in their motion, but the judge told me that the 40 days doesn't apply (since the attorney was well passed the deadline)
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21 Oct 2021

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Lawyer's response
21 Oct 2021
Stephen L
Stephen L

Hello and welcome to the JustAnswer Legal Page! This service is the preeminent online service for information regarding your legal issues. Your question is very important to me so thank you for using our service. My name is***** an attorney here at JustAnswer, I received your question and I reviewed it.

  • Your inquiry is whether the judge can make a ruling dismissing a filing time limit.

I am sorry you are dealing with this problem and I will try to help you.

Please give me a few minutes to prepare an answer to your question and I will get back to you shortly.

21 Oct 2021
Lawyer's response
21 Oct 2021
Stephen L
Stephen L

This sounds extremely frustrating and stressful but there are potential options.

Judges have the authority to waive or otherwise extend filing limits when they deem to do so in the interest of justice. The only deadline that a judge can never waive is the statute of limitations for filing a lawsuit or criminal indictment.

If a judge has already ruled on it, there are only two options. One is to make a motion to reconsider. In a motion to reconsider, you need to explain what evidence the judge missed or failed to get right. You cannot simply present the original evidence over again - but you need to explain in detail what the judge missed, and why it would or should have made a difference.

The second option is to appeal the judge's decision and explain what the judge got wrong as a matter of law.

You cannot relitigate the case, or say what has already been said - but must explain on appeal based upon the law how the judge or the court got the decision wrong.

Thank you for using JustAnswer. I hope that this response gives you guidance as to how you can proceed. I wish you well.

21 Oct 2021
Customer reply
21 Oct 2021
This is an initial action seeking sanctions against me for appellate conduct. The statute requires the motion to be served and filed within 40 days after issuance of the remittitur.
21 Oct 2021
Customer reply
21 Oct 2021
In other words, doesn't it have the same effect as an initial pleading?
21 Oct 2021
Customer reply
21 Oct 2021
Oh, and the Attorney who filed is the one who invoked the statutory deadline as the legal authority to bring the action.
21 Oct 2021
Customer reply
21 Oct 2021
I appeared specially to challenge the validity of service and the expired deadline. That's when the judge sided with the Attorney by saying the deadline didn't apply
21 Oct 2021
Lawyer's response
21 Oct 2021
Stephen L
Stephen L

I understand the frustration.   It may be grounds for appeal. But generally speaking, the 40 day obligation is considered a soft deadline and can be extended when the judge makes findings that doing so is in the interest of justice or that doing so does not prejudice the rights of either party.

Additionally the judge has the right to weigh the relative merits of the harm to the parties if the deadline is invoked as opposed to the benefit of allowing the case to be heard on the merits.

Ultimately, civil courts have a policy as when applicable and appropriate that most matters should be heard and decided on the merits rather than removed on the basis of technical impediments.  This is from the foundational jurisprudential philosophy that the main purpose of courts is for the review of disputes, the opportunity of parties to plea and make their case and providing justice based upon the facts and evidence that are subject to the dispute before the court.

This is a long way of saying that if it's a close call, courts will generally decide to allow cases to be maintained rather than dismissed.

21 Oct 2021
Customer reply
21 Oct 2021
Ah, I see. Well, I'd better start over with a better question then. Thank you
21 Oct 2021
Lawyer's response
21 Oct 2021
Stephen L
Stephen L

You are very welcome. Have a good day.

Stephen L
Stephen L
Avg. question only $36
Managing attorney
21 Oct 2021
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