Legal Question in Business Law in California

Re: Attorney says I didn't oppose on time

I have no idea what your case is about, so I will take a wild guess based on 1) your opponent is represented by an attorney; 2) you aren't an attorney; 3) you seem to be certain that your legal position is superior to that of your opponent. My best guess is, he has you outgunned, your legal reasoning is incorrect, and you will lose. You will then blame the result on the crooked judge.

Re: Attorney says I didn't oppose on time

By "response in opposition" I assume you meant an "answer to the complaint." I can't imagine at this stage what would be the basis of any "motion to dismiss" or how it would have merit (as an initial pleading, requests to dismiss the plaintiff's case are only granted if you convince the court that even if everything stated in the complaint is assumed to be true, the plaintiff none the less can still not state a legally recognized claim against you).

Your statement that the plaintiff's attorney is "betting on a legal technicality" is also vague. Does this mean that they filed some additional papers, or that they told you or someone else (who told you) that they were going to win on a "legal technicality?"

If you truly didn't "answer on time," then the other attorney likely filed a Request for Entry of Default against you, and your default would have been entered by the court, making it impossible for you to file any papers with the court (like a response or motion to dismiss). Check the court docket on-line to see what papers have been filed. You should also receive the papers returned from the court as refused for filing if a default has been entered.

If there is no default entered against you, then you can ignore any comments or statements made in papers filed by the attorney, because your late filing of the answer (what you call a "response") is irrelevant if the court has accepted it for filing (the way you complain about a tardy answer is by filing a Request for Entry of Default).

If your default has been entered you can only do a couple of things to fix the problem. You must file a Motion for Relief from Default (Code of Civil Prcedure Section 473) stating that the failure to timely answer was due to surprise, excusable neglect, etc.., or do a Motion to Quash Service of the Summons and complaint, arguing that you were never served. You can also seek a stipulation from the plaintiff's attorney to set the default aside (this is a written pleading signed by both of you and filed with the Court, accompanied by a proposed order for the court to sign setting aside the default and allowing you to answer).

You have no more than 6 months from the date the default was entered to do a 473 motion, and the time to do a motion to quash may likely have lapsed (at the same time you were late filing an answer)-- but you can filed the motion to quash with the 473 motion.