Legal Question in Civil Litigation in California

Recommend you not attempt to defend in pro per. If your default was entered, you've already bollixed things up (no attorney would have relied on the alleged 10 extra days). Have the attorney you retain move for relief from default, which will be granted. Does your contract with the attorney provide for attorney fees to the prevailing party?

If the default and judgment have not yet been entered, file and serve a responsive pleading immediately. Don't stand on principle and insist on the 40 days and that it was never mailed. Of course, it was mailed. Take a look at the proof of service on file with the court. I concur with my colleague's suggestion.

I agree that you probably can get the default set aside if it is already entered. But there is another potential issue - assuming that your attorney is suing you over fees, did he/she first serve you with a Notice of Right to Arbitrate? And, has the time period for you to elect arbitration lapsed? If the answer is no to either of these questions, you have the right to stay the civil action and arbitrate the dispute through a local Bar Association program.

I am an appellate law specialist (which means in part that I deal with many "post mortems" between clients and their former attorneys). I have handled fee disputes both as an advocate and as an arbitrator. My offices are in Century City and Santa Barbara. Please see my website at www.LosAngelesAppeals.com.

If you are interested in a no-obligation consultation, please contact my office.

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If his proof of service states that he served you by substituted service, then his service is complete 10 days after the date he claims he deposited copies of the summons and complaint in the mail. This would give you a total of 40 days from the date that he claims he deposited the copies of the summons and complaint in the mail to file your answer and cross-complaint. If the clerk entered your default, and it was based on a proof of service that stated you were served via substituted service, she may have entered your default prematurely. You can set this aside if you show the clerical error. The big issue here is what does his proof of service say?

The first thing you should do is get a lawyer. How hard that will be is difficult to say if you are already being sued for unpaid fees by your former counsel. Your counsel can then ask your former counsel for relief from the default (if it has already been entered) and, if your former counsel won't agree file a motion with the Court. Whether it was a clerical error, or because the time had run, you stand a good chance of getting the default lifted if you show that you are prepared to go forward with the case.

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