Legal Question in Business Law in California

Re: OCTA Judgement

If you were not properly served with the lawsuit, your first step is to hire an attorney and file a motion to set aside the judgment. Until that is accomplished, the judgment creditor can come after your assets in any manner it deems fit.

Re: OCTA Judgement

I suspect you do not want to file an appeal as much as you need to file a motion to set aside the judgment on the grounds that you were never served.

An appeal goes to the merits of the litigation. It's a little hard to appeal if you never appeared.

The deadline to file an appeal is 60 days from the date of entry of judgment, absent certain exceptions. Careful - the rules regarding appellate procedure are very, very strict.

The deadline to file a motion to set aside is generally a maximum of 180 days from the date of entry of default. This is also a statutorily strict deadline.

If you were never served with the summons and complaint, then you can theoretically move to set aside on the basis of defective service, at any time. But that is risky. The sooner you move, the better.

If you need help, let us know. We have litigated many times the issues related to motions to set aside defaults, both for plaintiffs and defendants.

Good luck.

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Re: OCTA Judgement

You need to file a Motion to Set Aside as soon as possible.

Re: OCTA Judgement

You may be able to make a motion to vacate the judgment, but it will depend on how the plaintiff served the complaint against you. You will have to look in the case file to see how they claim to have served you -- do they say they served you personally, or did they use some other method? Without this information, I can't advise you further on how to respond. Please feel free to contact me if you would like to discuss this further.

Re: OCTA Judgement

Apparently there is a judgment against you and you were never served. Do NOT file an "appeal." You must file a Motion for Relief from Judgment. This motion has to be filed immediately, as soon as you learn of the judgment (i.e., NOW). Do not attempt to file this motion without a lawyer, because you will only get one chance, and if you blow it, you will be Stuck Out Of Luck for all time and you will have to pay, even if it means paying twice.

Re: OCTA Judgement

No, you don't need an attorney, as long as you know all the rules and procedures needed to prepare the appropriate pleadings and supporting documents, file and serve the pleadings, and conduct the hearing on the motion to set aside the default and judgment. Your question certainly implies you don't. You only get one chance at it, so do it right. You should understand, that if you are able to set aside the judgment, you then must defend the lawsuit. That will also require your own legal knowledge and skills in court, or the help of an attorney. Feel free to contact me for legal help if the case is in SoCal courts.

Re: OCTA Judgement

I agree with the six prior answers. A motion to set aside the default judgment is the way to go. I also agree -- very strongly -- that you should not try to do this on your own and that you need a lawyer ASAP.

Technically you can appeal from this judgment and argue that the trial court never had jurisdiction over you because you were not served. The problem with this approach is that you can't introduce any new evidence on appeal. You will be stuck with what is currently in the superior court file and what was said at various court hearings. Since that information convinced the judge you were served, I doubt you will be able to use it to prove you were not. This is why you should attack the judgment in the trial court rather than the Court of Appeal.

As others have noted, you must act promptly now that you know what has happened. Please feel free to contact me directly if you want to discuss your situation further.

Re: OCTA Judgement

Set aside the judgment. Call me directly at 1.619.222.3504.

Re: OCTA Judgement

Things your new attorney should look into while preparing your "Motion to Set Aside Default Judgment" should include the following:

(1) All particulars of the method of service claimed to have been used, and the identity of the process server. If process is served by a registered California process server and the service appears facially proper including the process server's signature under oath, there is a presumption of proper service. The presumption is rebuttable, but you will have to submit your own declaration under penalty of perjury, denying service (and any other facts, such as "I can prove I was in Iraq on the day he claims he served me in Anaheim").

(2) Your attorney should study the Complaint on file, and any supporting papers used to obtain the default judgment. A request to enter default is supposed to be mailed to the defendant, which serves as a backup of sorts to service of the Summons and Complaint. You need also to be ready to explain why you never got this. Of course, failure of the plaintiff to mail it, or use of the wrong address, are both possibilities.

(3) Your attorney will need to submit a proposed responsive pleading along with the Motion to Set Aside. This would usually be either an Answer or a Demurrer. This will require his or her becoming fully familiar with both the Complaint and all facts supporting your proposed defense.

Finally, if the judge thinks the plaintiff has acted in good faith and that the only (or main) reason you weren't served is that the process server did a poor job, the judge hearing your Motion to Set Aside may agree to set aside your default but only if you pay the plaintiff's costs and legal fees incurred to obtain the default.

If and when you are successful in having the default judgment set aside, you will still be facing defending the suit or negotiating an out-of-court settlement. Unless you are pretty confident of your defense, you might be better off accepting the default judgment. After litigation, you could emerge the winner, or you could be stuck with a bigger damages award, attorney fees, interest, court costs, maybe punitive damages, and the cost of getting the set-aside. On the other hand, maybe you can file a cross-complaint. Opening a default creates a lot of strategic decisions.