Legal Question in Business Law in California

SMALL CLAIMS

An old client who's project was completed requested a mutual release agreement and delivery of the work 2 years ago. This was done although he never signed and returned the mutual release. The client paid half up front for the work, and half towards the end of the project.

2 years later he attempted to serve me with a small claims notice at my old address, 5 months prior I had moved to another county. I never got the notice.

The client sent no demand letter, no call or email voicing any dissatisfaction or opportunity to remedy anything.

All certified letters there were returned. 20 days before the hearing, a process server came to my old address, my ex room mate informed him I no longer live there. The server left the summons at the doorstep, and entered it as proof of substitute service.

My ex room mate returned he paperwork to the court informing them she had told the service processor I no longer live there, and that she had no forwarding address. Her letter was added to the case file.

As I was unaware of the case, I could not attend the hearing. So the judge must not have read the case file ref improper service, and awarded a default judgment 7 days ago.

What would be the proper course of action to get the judgment:

1. Vacated and

2. Either the case dismissed or a trial date?

Its states on one CA gov website substitute proof of service can only used after 3 attempts at direct service on 3 different days and at 3 different times.

The small claims adviser also stated substitute proof of service must be delivered at least 25 days prior to the court date if I live in the same county, and at least 30 days prior if I reside in a different county.

Please note this is in CA, I just found out about it today, was not at the hearing and a default judgment was entered 7 days ago.


Asked on 7/04/10, 9:12 am

2 Answers from Attorneys
Anthony Roach Law Office of Anthony A. Roach

You need to file a motion to set aside the default based on lack of service. Some courts have a small claims advisor's office that may be able to help you with this.

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Answered on 7/04/10, 12:19 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

The process for making a motion to vacate a small-claims judgment after failure of defendant to appear at the hearing is set forth in Code of Civil Procedure section 116.730. Other sections that might be of interest are 116.710 through 116.795 covering small-claims appeals in general and 116.330 to 116.340 regarding the order to appear and service of claim and order on defendant.

In addition to looking up and reading the governing statutes, you should probably acquire and read one of the Nolo Press type self-help law books on California small-claims practice and procedure. There are other good publishers as well as Nolo. Observe the time frames for moving to vacate. Technically, a judgment rendered by a court that has not obtained personal jurisdiction over a defendant by valid service of process is void, but as a practical matter unless you raise a stink in the prescribed time frame you will have a difficult job defending yourself against the void judgment and its side effects.

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Answered on 7/04/10, 7:01 pm


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