Our legal system favors finality in court orders and judgments. However, our legal system also favors justice and participation of both parties to a law suit recognizing that people make mistakes or court orders might be based on bad information or law. Therefore, there are mechanisms to give litigants a redo or a second opinion in certain circumstances.

First let’s discuss some terminology. Many of you know the term appeal, but probably don’t know what it really is. An appeal is when the appellate court is asked to determine whether or not the trial court made a mistake. If the appellate court finds a mistake by the trial court judge the case is usually sent back to the trial court for a redo with instructions on how to fix the initial error.

You may not have heard the term “set aside” before. To set aside a judgment or order you are asking the court to act as if the order was never made, which puts the case back to the state at which it was prior to the orders that were set aside. A request to set aside an order or judgment is usually determined by the trial judge.

The term “default” means an order or judgment was issued without the participation of one of the parties, frequently because that party refused to participate.

Set Aside
California law favors those who act quickly when asking for a redo. California Code of Civil Procedure Section 473 provides an often used mechanism to set aside a judgment or order if requested within six months of the order being made or within six months of becoming aware of the order or judgment. If requested within the statutory time frame California Code of Civil Procedure Section 473 allows the Court to set aside a judgment or order if the requesting party can demonstrate the order was made due to their mistake, inadvertence, surprise, or excusable neglect. The requirements for a set aside under CCP 473 are not difficult to meet although the six month time frame is strict.

California Code of Civil Procedure Section 663 also provides a mechanism to set aside a judgment or order. CCP §663 has no time restrictions as CCP §473 does; however, the aggrieved party must demonstrate the court’s decision was based upon an incorrect or erroneous legal or factual basis. CCP §663 is akin to an appeal but is in front of the same judge that made the initial order. CCP §663 is not as widely used as the other mechanisms in this article as you can imagine trying to convince a judge that they made a mistake is not popular or very effective.

Another mechanism to set aside a family law case order or judgment is California Family Code Section 2122. Family Code §2122 provides litigants with the option to set aside a judgment or order beyond the six month restrictions of CCP §473; however, the basis for the request is not as easily met as CCP §473. To obtain a set aside under Family Code §2122 an aggrieved party must demonstrate the order or judgment was based on Fraud, Perjury, Duress, Mental Incapacity, Mistake, or Lack of Compliance with the disclosure requirements of the family code. Family Code §2122 does have time restrictions which range from one year after finding out about the order or judgment to two years after entry of the judgment depending on which basis your requesting the set aside under.

California law favors judgments in which both parties participate. Therefore, when one party is defaulted a set aside will generally be granted by the court if the party defaulted can meet the requirements of one of the statutes above.

California Code of Civil Procedure Section 1008 gives litigants a means to ask a judge for a redo which we call a motion for reconsideration. The motion must be filed within 10 days after service upon the party of written notice of entry of the order, again very strict time restrictions. The requesting party must also show there are some new facts or law justifying the redo. CCP §1008 does not let one ask for a redo because they don’t like how it turned out. The litigant must demonstrate there are new facts or law that was not available at the time of trial that suddenly became available that could change the outcome of the court’s decision. CCP §1008 is frequently utilized when after a trial documents appear, an unknown or unavailable witness comes forward, or a law is passed or a case decided that has a major impact on the outcome of the case.

Last but not least by any means is an Appeal. As discussed briefly above an appeal takes the case to a different judge or in most instances a panel of judges. However, the appellate courts do not hold a new trial; they read the record from the trial, read each party’s briefs, may hear a brief oral argument and then decide if the first court, trial judge or jury, made a mistake. The mistake is usually in the manner in which the first court applied the law to the case, but can also be in the manner in which they viewed the evidence. As you can imagine the appellate process is starkly different from that of proceedings in a trial court. The appellate process is not very attractive in family law cases due to the high costs of an appeal and the lengthy time involved which can be as long as a year or more.

Like we discussed earlier in this article our legal system favors finality in orders and judgments. Therefore, there are very strict deadlines for seeking an appeal. The normal time to appeal is provided by California Rule of Court 8.104. The notice of appeal must be filed no later than 60 days after service of the “notice of entry” of judgment or 180 days after entry of judgment.

The time restrictions of Rule 8.104 are strict as can be seen from Rule 8.104(b) which states “Except as provided in rule 8.66, no court may extend the time to file a notice of appeal. If a
notice of appeal is filed late, the reviewing court must dismiss the appeal.” When a code or rule uses the word “must” you know they’re serious.

This article is not an exhaustive review of the mechanisms for relief from an order or judgment but seeks to review the most commonly used tools available to litigants in a family law case in California. There are a number of other mechanisms for relief from a court order. You should seek the advice of an experience family law attorney such as Mesnik Law Group, Inc. for a more thorough review of your case and the specific relief available to you. Contact us now for a FREE one hour consultation.