motion to vacate judgment vs appeal

[oracle117]

california

can a party(settlement in their favor) in a lawsuit file a motion to vacate a judgment to enforce settlement (ccp 664.6) (other party filed motion to enforce settlement per 664.6 and motion was granted)? If they are ruled against then, can they file an appeal?


thanks!

 

[stephenk]

Huh? who settled and who had a judgment entered in their favor? dont be so cryptic.

 

[oracle117]

clarification

california

The Plaintiff was pro per. The day of trial there was chaos in chambers with plaintiff,defense atty and judge. The judge was new to the case that day it was to start. (old one of 1 1/2 years had overflow) Plaintiff had physician on call to be first witness/had exhibits/opening statement/etc. But Defense attorney had refused to meet/talk/etc. with pro per per the judge's pretrial order and things were up in the air. defense refused to provide evidence to plaintiff (statement of employee involved in accident), would not allow employees to appear to testify despite proper notice, etc. The Plaintiff had a fever, flu, in pain from back injury, on narcotics/muscle relaxers/NSAIDS etc., anemic from bleeding ulcers caused by pills for injury pain, etc. and was worn down by defense's antics. Judge said the case was not ready to start.

defense was obnoxious as usual/monopolized conversation and the new judge was wimpy and left him ramble on about anything, lying about what happened, etc. Judge said the case was not ready/like a circus. The Plaintiff started crying at wit's end and got up to leave. Judge said she can't leave. Judge said something has to be settled/ she can't just run out crying. Judge tells obnoxious defense attny to leave chambers.
Judge asked if she would settle. she said yes, but they had made no offers. Judge goes into hall/returns and said all he can get from them is $1,000. Plaintiff had over $50,000 in bills, etc. from injury. Plaintiff has good case/eye witness/doctor testimony, etc. Defense has nothing to dispute.
Plaintiff was upset,crying, etc. judge was telling her she couldn't leave, could take $1,000, wouldn't have to pay defense fees, etc. Plaintiff didn't agree...crying...said whatever just to get out of there.

Plaintiff wrote Defense a letter next day and said don't bother sending an agreement for $1,000/she won't sign. There was a later settlement status conference. Plaintiff tried to state how unfair it was, she was pressured, was not her fault there was chaos, wanted a trial, etc. Defense asked for judge to enforce settlement and judge approved it telling Plaintiff she verbally agreed to settle.

Plaintiff trying to figure out if she can/should file a motion to vacate judgment to enforce settlement or file an appeal... or can she do both? since she was never able to have a chance on record to state her objections/case for not signing settlement document, she thought she couldn't appeal because appeals court says they don't hear new evidence. but can she file a motion to vacate a judgment in her favor (settlement of $1,000) just to get her objections on record and then if judge won't vacate appeal his refusal to vacate?

any help would be appreciated.

i know get a lawyer.....she would but she can't afford it...no one wants to take a case a pro per has been handling (you have a good case...should have come sooner, etc)...etc. so she has no choice but to handle it herself.

 

[stephenk]

was the settlement put on the record in open court with a reporter? If yes, she is screwed. The time to object or refuse the offer was then. She can't come back now and claim all sorts of reasons why she shouldn't be held to what she agreed to.

If she is so sick, nervous, ignorant of the law, etc. she should not even try to go to trial. Does she know how to lay the proper foundation to get evidence introduced and admitted? Does she know how to conduct direct and cross-examination of witnesses? Does she know proper objections to defense questions and evidence introduction? If the answer is no, then she should accept the $1,000 and move on with her life.

Believe me, if she had a slam dunk case with $50k in legitimate medical bills, she would have attorneys knocking down her door to represent her.

 

[oracle117]

Follow Up

CALIFORNIA

The question was can she technically/legally file a motion to vacate judgment and if she loses...can she appeal? Or can she only do one or the other?

Thank you

Once a person handles something Pro Per, no attorney wants the case because they say the pro Per messsed things up and they do not want to have to recover from the pro pers errors no matter how good the case. they want the ideal situation where they start the case themselves, not take one as they are.

 

[stephenk]

you still haven't answered the questions I posted. answering those questions will give me a better idea of how to answer the question on appealing or filing a motion to vacate.

 

[oracle117]

follow up

california


was the settlement put on the record in open court with a reporter?

yes, but what happened is the judge (who was new that day) said the case could not go forward, but never bothered to find out why everything was chaos. (she was ready, had doctor ready as first witness/paid to testify, paid a guy for the day to carry exhibits, opening statement ready, exhibits tagged and ready, jury questions 1 month prior submitted...she was ready. the defendant had never met with her, refused to allow 3 properly noticed employees involved in accident to testify for no reason, refused to give her evidence (statement of employee involved) which she had asked for over and over...he started blabbing about whether she would be questioning herself, whether she was capable of presenting a case, etc. he argued about the statement to the jury that they had agreed on at the pre trial conference, she said the guy just kept blabbing on and the new judge was winpy and flustered saying that there was too much chaos and they couldn't start the trial. she wanted to leave since it was not going to trial and the guy wouldn't shut up. the judge said she couldn't just leave that they had to settle things. he told the defendant to leave the chambers because she was crying and upset and he just kept antagonizing her to distract from the fact that he was to blame/failed to comply with the pre trial orders to meet and confer/exchange evidence, etc. the judge asked if she would settle. she said for a reasonable amount. judge left and came back and said he will only give $1,000. judge basically pressured her to settle for $1,000. he wouldn't let her leave, told her she had to settle and said the trial could not begin. what that did was allow the defense attorney to name any amount knowing hte judge was pressuring her to settle. a judge has no right to force someone to settle and deny them their right to a trial, if only postponed. the denfense was thrilled because they had nothing to dispute her case (firm representing home depot) and they got to name the amount $1,000. she said to judge i have to agree to take $1,000 or i can't leave? (she was crying the entire time because it was so bizarre and unfair). he grabs hi robe and tells her to come out with him they are going on record. she stood there crying the entire time....the defense and judge did all the talking and that was it. she refused to sign the settlement when the defense sent it to her (they added all kind of extra sel serving things to it). they filed a motion to enforce settlement/judge agreed in two minute session where she tried to speak but judge cut her off and said she agreed to settle that was it.

so should she file motion to vacate (same judge would hear) or appeal? can she appeal without first getting her motion to vacate denied?

you know people that i know who have represented themselves do not do it for kicks...they hate it, but for reasons like money, can't get attorney, etc. they are forced to go through this very unfair humiliating process...clerks won't help, judges act like *******s trying to intimidate and get rid of them and defense attorneys take advantage of them....

 

[stephenk]

did she file written opposition to the other party's motion to enforce settlement? If yes, then the only option remaining would be to appeal the ruling.

However, is the case worth the trouble and is your friend able to do a trial? I am in trial presently with a lady representing herself. She has not been able to get any of medical bills admitted into evidence because she doesn't know what she is doing. She doesn't know the rules of evidence or how to testify or cross-examine witnesses.

 

[oracle117]

follow up

california

she is trying to get an attorney to do the trial if she can get the settlement vacated/trial back. but attorneys don't seem to like to take over at the last minute despite it being a very good case against home depot.

after the 'settlement' in judge's chambers for $1,000 (2/3), she recieved a notice of dismissal in 45 days from the court. (3/19) it said dismissal without prejudice (not with) if no one plead otherwise. no one did. then nothing happened...next thing was a notice of a settlement status hearing on 7/8. that is where defendant asked for judge to enforce settlement and plaintiff didn't get a chance to speak/cut off as usual. the $1,000 settlement written by the defense adds all kind of things extra to benefit them and the court never even looked at it, plus it say dismissal with prejudice and demands a gag order on the plaintiff to not be able to discuss the case or settlement.

if the case should have been dismissed without prejudice and for no reason was not...couldn't the plaintiff have filed a new suit?

also, the denfendant just sent a check for $1,000 in the mail and threatened her to sign an affidavit of acceptance and papers to close the case and shut up. she noticed the check was dated over 90 days ago and it says void after 90 days , so the check isn't even any good. not that she plans to keep it any way. they can stick it up their ass.

 

[SallyMario]

What if no written opposition?

did she file written opposition to the other party's motion to enforce settlement? If yes, then the only option remaining would be to appeal the ruling.

However, is the case worth the trouble and is your friend able to do a trial? I am in trial presently with a lady representing herself. She has not been able to get any of medical bills admitted into evidence because she doesn't know what she is doing. She doesn't know the rules of evidence or how to testify or cross-examine witnesses.

I did not file written opposition in my case wherein the other party filed a motion to enforce a settlement agreement. The judge granted their motion which included attorney's fees to enforce the settlement agreement. I had been having problems paying but informed the court that i could pay. The judge stayed the order until a later court date. I want to pay and file a motion to vacate the judgment to ask the judge to reject his previous ruling and not pay the attorney's fees.

 

[CALawyer]

to oracle117

Thanks for the clarification. I believe I may have provided a brief response to a post from SallyMario on this subject without the benefit of the descriptions in this thread.

Due to the passage of time, your options to vacate the settlement judgment are somewhat limited. I believe you have missed the window to file a CCP 473 motion (6-months from date a judgment.) You can bring a motion to vacate on equitable grounds (no time limit) but you will likely end up with the same judge.

Regarding your right to appeal, if the court grants the CCP § 664.6 motion (enforcing settlement), that judgment is immediately appealable. You don't have to file a motion to vacate to perfect the appeal.

With the limited information at my disposal, I am inclined toward an appeal.

 

[Zigner]

I did not file written opposition in my case wherein the other party filed a motion to enforce a settlement agreement. The judge granted their motion which included attorney's fees to enforce the settlement agreement. I had been having problems paying but informed the court that i could pay. The judge stayed the order until a later court date. I want to pay and file a motion to vacate the judgment to ask the judge to reject his previous ruling and not pay the attorney's fees.

Please don't necropost and don't hijack. Start your own thread with your own questions.