I need Help with Motions and CCP 128.5

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surfsupinhawaii

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I am in the appellate stage of the case I am involved in. The case involves the Plaintiff that is now suing me in civil limited. I originally sued him in small claims and won. He is now trying to sue me in civil limited, but my lawyer filed a Demurer based on Res-Judicata. the Plaintiff tryed to sue me for almost the exact thing he counter sued me for in the small claims case.My lawyer sent me a letter a few months ago saying he was done with case since I had a ruling sustaining the Demurer Without Leave to Amend. I was awarded sanctions also. I have a few questions I hope can be answered here. 1) My lawyer filed the wrong CCP. 128.5 it should have been 128.6. They are almost identical, except that the case must have been filed on or before Dec of 1994 using 128.5. It was allowed to go through.How do I change this. In the appellants brief they bring up this point. I am sure it was a clerical error. I talked to the lawyer I once had who did'nt say much.He is looking at the brief but has not gotten back to me.The Judge let this pass through and it is on the judgment.Can I file a motion to have the mistake amended. The judge hearing the Demurer let it go through and the Plaintiff at that time was in Pro-per, he allowed it to go through.
2) In the clerks transcipt there is an exhibit which is not legible. It is a construction bid for the plaintiff. He is using this as a bases for his claim as bringing in new evidence. I believe that this person is not a contractor since there is not a license number. I also checked with the cslb website and nothing comes close to what I can make this name out to be. I believe this is a fraudulent document. I called the clerks office and they only have a photo copy, also not legible. I called the Plaintiff's attorney who wont give me the name, saying it is left for discovery.What type of motion do I file to have a clear record of this persons name given to me before I must submit my respondant's brief. Sorry for the long story. I am a General Contractor, trying to do the work of a Lawyer. Finding it a bit frustrating, but would rather try to do this myself. I hope I was clear, but If I was not, I will fill in any gaps. Thanks in advance.
 
Sorry, but it's difficult to respond to your question without actually seeing the files, and I'm not sure in which stage the appeal is at this time. Therefore, I would keep calling my attorney until he gave me an answer. I'm assuming that your attorney is not representing you in the appeal. If that's the case, and if it was a simple clerical error, then he should at least advise you on how to proceed, even if you are now pro se.
 
The Appellant brief has been filed.

The Appellant has filed his brief and I have until febuary 24th to respond. I have called the lawyer several times. He said he would look at the appellants brief and call me in a couple days. It has now been over a week and no word. I believe he should at least inform me on the correct ccp to use to fix this error. I was thinking I could use ccp. 475. I am very upset with this lawyer since it seems as though he doe'snt want to be involved. He made the mistake, he should fix it. I am a General Contractor, if something breaks that I worked on, I would be back fixing it right away. Not too sure on his ethics.
 
Has this attorney filed any pleadings with the appellate court with his signature, reflecting that he is representing you? If so, has he formally filed a notice withdrawing from the case? Has he demanded payment from you for which you haven't satisfied, or threatened to withdraw from the case for any reason? If he hasn't formally withdrawn from the case, then he is still under an obligation to represent you. (BTW, saying over the telephone that he's "through with the case" is not a formal withdrawal or "notice" to the client).

I would send the attorney a written letter, via Certified Mail, Return Receipt Requested, to state your concern in detail, remind him of the 2/24 deadline for filing a Reply Brief, and ask that he contact you within five (5) days of his receipt of the letter to discuss the matter and his plan of action.

If you do not hear back from him prior to the 2/24 deadline, and he hasn't formally withdrawn from the case or filed a Reply Brief on your behalf, then I would immediately file a complaint with the State Bar and forward a copy of the complaint to the judge assigned to the appeal, along with a cover letter to further explain and request an extension of time to file a Reply Brief. This does not guarantee you any relief, however, it will show the court your unfortunate circumstance and could possibly allow you additional time to either file a Reply Brief on your own, or hire another attorney to assist you.
 
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