Need help with Writ and motion to set aside default

[rmet4nzkx]

Need help with Writ & motion to set aside default- Help IAAL or Jetx Please?

What is the name of your state? California
Need help details Offline? with Writ of Extraordinary Relief Ca. Rule 989.3 and motion to set aside default judgement related to it. Both instances involve clerks failing to honor requests, process application and what resulted from that, so jurisdiction is Superior court not court of Appeals see below. CJC is aware of infractions, difficulty is in getting court to honor or implement the rule. Acting presiding judge (Denied request for accommodations for reasons not allowed under the rule) left without addressing emergency motions and denied request for emergency stay, presiding judge returns Monday.

www.courtinfo.ca.gov/rules/titlethree/title3-102.htm
(c) [Process] The following process for requesting accommodations is established:
(1) Applications requesting accommodation(s) pursuant to this rule may be presented ex parte in writing, on a form approved by the Judicial Council and provided by the court, or orally as the court may allow. Applications should be made at the designated Office of the Clerk, or to the courtroom clerk or judicial assistant where the proceeding will take place, or to the judicial officer who will preside over the proceeding. (clerk refused to process application)

(2) All applications for accommodations shall include a description of the accommodation sought, along with a statement of the impairment that necessitates such accommodation. The court, in its discretion, may require the applicant to provide additional information about the qualifying impairment.

(3) Applications should be made as far in advance of the requested accommodations implementation date as possible, and in any event should be made no less than five court days prior to the requested implementation date. The court may, in its discretion, waive this requirement. (hard to do if clerk refused to accept form 8-17-4)

(4) Upon request, the court shall place under seal the identity of the applicant as designated on the application form and all other identifying information provided to the court pursuant to the application.

(d) [Permitted communication] An applicant may make ex parte communications with the court; such communications shall deal only with the accommodation(s) the applicant's disability requires and shall not deal in any manner with the subject matter or merits of the proceedings before the court.

Q & A on Rule of Court 989.3
Access and Fairness Advisory Committee
1998, Volume 1, No. 1
JUDICIAL COUNCIL OF CALIFORNIA ADMINISTRATIVE OFFICE OF THE COURTS
Can the court deny my request?

Yes, the court can deny your request. If the court denies your request and you disagree with the decision for a preferred accommodation or the court provides an accommodation that you believe to be inadequate, you may file an appeal. The appeal process is explained in rule 989.3. To be effective, the denial must be in writing and state specific grounds within rule 989.3 for the denial.

PAI:
How will I know if the court will accommodate my disability?

You should get a notice in writing that tells you whether the court granted or denied your request for accommodations. It will also tell you what accommodations the court will provide, if any.[19]
What should I do if the court won't give me reasonable accommodations?

You have the right to appeal. The steps you take depend on who denied your request for accommodations, or offered accommodations you think are not right.

(1) If a non-judicial court employee (a clerk or jury commissioner) denied your request, you can ask a judicial officer (a judge or court commissioner) to review the decision. You can also ask a judicial officer to review the decision if you do not think the accommodations a non-judicial employee offered are adequate. The judicial officer should be the one who will preside at the hearing or trial. If the hearing or trial does not yet have an assigned judge, you can ask the presiding judge of the court to review the decision. In either case, you must ask for review within 10 days of the date on the notice of denial or accommodations.[20] For the writ of extraordinary relief.

(2) If a judicial officer (a judge or court commissioner) denied your request, you would file a petition for extraordinary relief in a higher court. You would file the same petition if you thought the judicial officer granted you inadequate accommodations. In either case, you have 10 days from the date on the notice of denial or accommodations to file the petition. You would probably need help from a lawyer to file this petition.[21]

 

[Shay-Pari'e]

RMET, post what you asked me in your PM, and address the question to IAAL or JETX. They can help you with this.

I believe Jetx allows private messaging if you do not want to post it on the forum.

 

[rmet4nzkx]

Good morning any ideas?

 

[rmet4nzkx]

There is some progress in this matter, but a case of more steps back than foward, but hopefully in the end it will work out. There is reason to remain vague at this point.

The biggest problem with this area of law it that there is no uniform implementation or understanding of it's aplicaiton, once the word discretion is used to allow for grace towards an applicant for missing a timeline such as not applying for accommodations 5 or more days in advance of the need, it is used instead to allow for just about anything else but what the rule allows, usually not in favor of the applicant who has no real time means of relief even though the notice of an "appeal" or petition to file a "writ for extraordinary relief" only leads to more battles of semantics rather than the "STAY" that is associated with it.

This is further complicated by the fact that, the form used to apply for accommodations, is not user friendly and has no directions or instructions, no notice in the court facilities of the availability of the form, nor clerks familiar with it's processing or significance.

The same can be said for the process of applying for the "writ of extraordinary relief" which is the review process, which again is not publicized, so an informal process may be conducted without informing the applicant of the means of relief and even held to a higher standard or different standard than the rule requires. This when if anything a simple and uniform process is in the spirit of the law.

In working on this problem I discovered that all that was required for a stay of the related default judgement was the notice of intent to file the "Writ for extraordinary relief" within 10 days, this was done in a timely manner but ignored by the various judges who failed to state their reason for denying the stay and the accommodations which was not done in writing as required, there was a cccp170.6 challenge for bias, this in turn resulted in the lack of jurisdiction and last minute emergency petition to the PJ who has jurisdiction. eventhough there was there were several other basis for the stay, extreme hardship and the error was on the part of a clerk, not the applicant, one of the reasons was that they did not have jurisdiction thus it went to the PJ. The Acting, Acting PJ (who had jurisdiction) failed to hear the oral motion which included additional gounds), in addition to the notice for the "writ" (late on a Friday with no time for written petition) and instead denied a stay based on a motion that had not been made or heard, exparte communications are allowed in this instance under the rule and no other notice required, although notice had been served as appropriate.

The judicial council actually has forms that can be used for filing the notice of the "appeal" in this case it is a "special" appeal and not processed the same way. This informaiton was not readilly available but JV-820 & 825 forms are allowed optionally for these writs which require striking out some portions or using the "other" box and allows for a timely petition and STAY, and even later submission of the entire writ. If this information had been available it would have been easier to resolve the problems, a form is somehow recognized as official, but even having this in hand to replace the handwritten filed/faxed notice the clerks still didn't know what to do with it, how to file it and sent it on the the appeals clerk who in turn returned it to the PJ's office who's clerk later did acknowledge it, but no formal stamped/filed document. Now it means waiting until Monday for somehting that should have been stayed 1.5 weeks ago! Recalling or setting aside the other matters will take some doing.