request for trial

[oracle117]

california

this might be too technical for here, but maybe someone can help.

in california. if you are requesting to vacate a settlement (664.5)and assuming that it is granted, you want a trial on merits as originally planned prior to the settlement that we are assuming will be vacated for cause. do you ask for the trial in a motion under what ccp since there never was a first trial? i see places where you ask after there has been a trial, but what if there was not one?

I have a feeling I am asking to be attacked here...ala theme from jaws...but if anyone really knows, please help....it would be greatly appreciated.

 

[I AM ALWAYS LIABLE]

california

this might be too technical for here, but maybe someone can help.

in california. if you are requesting to vacate a settlement (664.5)and assuming that it is granted, you want a trial on merits as originally planned prior to the settlement that we are assuming will be vacated for cause. do you ask for the trial in a motion under what ccp since there never was a first trial? i see places where you ask after there has been a trial, but what if there was not one?

I have a feeling I am asking to be attacked here...ala theme from jaws...but if anyone really knows, please help....it would be greatly appreciated.

My response:

CCP 664.5 has nothing to do with settlements. Settlements are "contractual" and not judicial. Therefore, you need to have grounds for rescinding the "contract"; e.g., intrinsic or extrinsic fraud, lack of capacity, failure of consideration, etc.

What are your grounds?

IAAL

 

[oracle117]

Clarification

california

Assuming the settlement is vacated for cause and there never was a trial due to the settlement. What are you asking for if you want the trial you never had? It's not a new trial because there never was an old trial. You want the trial to be put on the calendar now that the settlement has been vacated.

What are you asking for? Do you file a motion to ask that it be placed on calendar? Does the judge do it if requested? Or if the settlement is vacated do you need to file the case all over?


Thanks

help before the am is greatly appreciated.

 

[I AM ALWAYS LIABLE]

My response:

What is the nature of the underlying action; i.e., What's your bitch? Was it "contract", was it an "auto accident"? What was it?

The real question then, becomes, are you still within the Statute of Limitations to bring your action?

IAAL

 

[oracle117]

more information

california

the bitch is a personal injury civil case. the settlement was grossly inadequate, fraud, failure to consider. the case was filed in March 2003. if the settlement is vacated 11/19/2004, do you ask for the trial to be put back on the calendar or dismissal without prejudice and then refile? or is it too late for that? i need to know what to ask for.

thanks IAL