Legal Question in Civil Litigation in California

If you are an attorney, you should contact me so that I can sue whoever gave you your law degree. If we move fast enough, we can get some of your tuition money back before the statute of limitations runs.

You don't have valid service. If you never filed the complaint, the court never issued a summons. It is service of a valid summons and filed complaint that triggers the duty of the defendant to appear. Since your secretary served a complaint that was not filed, she clearly did not serve a valid summons. Your default judgment is clearly invalid, and you should do the right thing and stipulate to set aside the defendant's default.

Service of the Complaint is not the pivotal point for your judgment. It is service of the Summons. If you served the complaint, before it was filed, I assume that you did not serve a Summons that was actually issued by the court. If that is the case, the defendant has grounds to challenge the court's jurisdiction to enter a judgment.

The defendant's proper procedure should have been to file a motion to quash service. You may dispute the motion to set aside the default judgment on the ground that there was no motion to quash service.

In any event, you will need to establish that the court had jurisdiction to enter the default judgment. For that, you will need to show that a Summons was served on the defendant.

Oppose the motion to set aside the default.

When did you get the judgment? CCP 473(b) allows the court to grant a motion to relieve a party from default if filed within six (6) months of the judgment. The judge can only relieve a party from default after six (6) months on equitable grounds if the defendant: (1) demonstrates that it has a meritorious case; (2) has a satisfactory excuse for not presenting a defense to the original action; and (3) shows it was diligent in seeking a default once the basis for the equitable grounds was discovered. Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.

Feel free to call me at (213) 381-6557 if you'd like to discuss the issue further.

Ari

So just where did you and Leichter get your law degrees, and did you find State Bar cards in a Cracker Jacks box? The staff error and not catching it is pretty lame, but shit happens. Asking the question you asked? On a web site? You should just resign from the bar before you do some real damage and get yourself disbarred. Without valid service of an issued summons the court never obtained jurisdiction over the defendant. Lack of jurisdiction is never waived except by a general appearance, and there is no time limit for objecting to a complete failure of jurisdiction. Just where did you go to law school that you didn't know that in your sleep?

I agree with Mr. Saltzman, and I partially disagree with Messrs. Roach and Leichter.

I think Mr. Roach misread your question, but I don't think that error affects the validity of his answer. He seems to believe you never filed the complaint, but what you wrote is that you filed it after serving the defendant. He presumes that the court never issued a summons, but even if it did that will not be enough. You need to properly serve the summons on the defendant. That evidently didn't happen.

If the defendant was never properly served with the summons and complaint, then the court never obtained jurisdiction over him. It follows that both the default and the default judgment are void for lack of jurisdiction. Lack of jurisdiction is an issue that can be raised at any time.

The statutory language Mr. Leichter cites applies to cases in which the defendant either was properly served or subjected itself to the court's jurisdiction by some other means. Your defendant has a perfectly satisfactory excuse for not defending the original action, since it was never subject to the court's jurisdiction. The delivery of an unfiled complaint, without a summons, will not overcome this problem. I have a very hard time imagining that a court would deny relief here, even if the defendant cannot satisfy all three of the criteria Mr. Leichter has described.

The only plausible basis I can think of for denying your motion would be if the defendant had actual notice of the judgment long ago and if his delay in seeking relief prejudiced your client in some very substantial way. The issue would involve laches. Offhand I don't know whether even this would be a valid reason to deny relief, but it's something you may want to research.

But you may have an even more fundamental problem if the statute of limitations has expired. Technically it is enough to file the case within the statutory period even if service occurs later, but the plaintiff must be reasonably diligent about this. It sounds like no one ever even tried to serve the defendant with a summons; if that is the case it will be hard to argue that you were reasonably diligent.

The reason we have limitations periods is that, over time, witnesses become harder to find, the memories of parties and witnesses fade, physical evidence is destroyed or becomes harder to locate, etc. Depending upon how much time has passed, the defendant may be able to persuade the court to dismiss the case on equitable grounds, arguing that it would be unjust to make him deal with the very problems the statute of limitations is supposed to prevent.

Another serious problem you will face is that you must have filed an invalid proof of service of the summons and complaint. The court would not (or at least should not) have given you a default without a proof of service. Proofs of service often contain honest mistakes, so hopefully that will prove true here. If someone deliberately falsified the proof of service then that person committed perjury.

Mr. Hoffman is dead wrong. I didn't misread your question at all. It is irrelevant that you later filed the complaint. You have a default on a false proof of service. Your default judgment is based on a false proof of service. As Mr. McCormick points out, the court never had jurisdiction over the defendant. Although you did not intentionally deceive the court, you have the duty to inform the court of this error. An attorney must not mislead anyone, and must be candid with the court, or you could face discipline.

Mr. Roach says I'm "dead wrong", but he seems to disagree with only one thing I said -- namely, that he misread your question. I may indeed have been wrong about that, which is why I said "I think" and "he seems". Substantively, though, he and I agree that the court never had jurisdiction over your defendant and that your default judgment is void as a result.