Legal Question in Civil Litigation in California

I filed a motion for judgment on the pleadings, it was granted with 10 days leave to amend for defendants to file a verified answer.

But at the time I filed the motion, Aug 26, defendants both had filed an Aug 16 unverified general answer to my verified complaint, via an unauthorized attorney. In my motion I brought up this issue and objected to the court accepting the Aug 16 answer and their Sep 9 response to my motion via the same unauthorized attorney.

After Aug 12 one defendant was in default, and after Oct 3 the second defendant was in default.

I should have said the one defendant was in default, but didn't realize.

The required courtesy copy of the Sep 9 response had not been submitted and so the hearing was postponed from Sep 23 to Oct 26 by the court. The original attorney of record attended the Oct 26 hearing, and I objected to him arguing on behalf of pleadings he didn't write or file.

After the motion was granted with leave to amend, on Oct 26, the unauthorized attorney filed a substitution of attorney on Oct 31 and Nov 1 for the 2 defendants. This proves he made a false statement in his Sep 9 declaration in support of his Sep9 response, and it proves he was not the attorney of record when he filed the Aug 16 answer and Sep 9 response.

I did not and could not attend the hearing, and I stated this in my documents.

I just filed a renewed motion for judgment on the pleadings to strike the Aug 16 ans and Sep 9 response because they were filed by an attorney who had no authority to file them with new evidence, the 2 substitutions of attorney docs. Also, they served me with these on Nov 4, the homemade proof of service says so!

Also, new evidence now, is that both defendants are in default, as of Aug 12 and Oct 3, and this was not the case for both defendants, at the time I filed my Aug 26 motion and Sep 20 reply.

Can I file a second renewed motion with this new evidence, and request my motion for judgment on the pleadings be granted without leave to amend, and the Nov 14 verified answer be stricken and default entered for both defendants?

Both defendants were in default as of Aug 12 and Oct 3, due to not timely filing verified answers after loosing a motion to quash and a motion to strike (notice of entry of orders were served).

Also, the Oct 26 hearing's mini minutes said the ruling, and that the prevailing party is to submit a proposed form of order, but I'm pro per, and per CCP 664.5 it seems, I should not have to do this.

But I don't know how to bring this up after I've submitted 3 proposed orders so far.

The Oct 26 ruling online says 10 days to file a verified answer, and they filed it on Nov 14, but I have not yet submitted and served the order. The court is at least 2 months behind.


Asked on 11/16/11, 3:42 pm

4 Answers from Attorneys
Patricia Meyer Patricia Meyer & Associates

You need to talk to a lawyer. It sounds like something happened at the hearing. You need to attend hearings and it doesnt matter if you say you cannot attend the Court will conduct business with those present.

But generally if they have now answered you cannot obtain a default. You can still file a motion for judgement on the pleadings if their answer does not raise a defense.

I am not following any of the unauthorized atty information or it's relevance to your case but if an atty makes false statements in a pleading your remedy (as the non-client) is to bring a motion for sanctions.

Good luck!!

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Answered on 11/17/11, 5:46 am
Anthony Roach Law Office of Anthony A. Roach

You are bleeding to death. Not literally, but figuratively. Your post is full of back and forth statements that conflict with each other, and misuse legal terminology. You present way too much information, the majority of which is irrelevant.

Attorneys do not have the time to respond to long posts like this, and teach you how to be a lawyer. For example, a party is not in default if they filed an answer, but you keep insisting that they are. And a motion for judgment on the pleadings is not appropriate when a document has been filed that does not comply with the rules of court, or with state law. The proper motion in that situation is a motion to strike.

The best thing you can do is get an attorney, and get one as soon as possible.

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Answered on 11/17/11, 9:58 pm

You need to let this go. The court is not going to let you win a case on the basis of technical issues or defects in the pleadings that can be cured by amended pleadings and substitutions of attorney. If you have a case on the merits, get on with it. You are only making busy work for the court and pissing them off, which is very likely to come back to bite you when it really matters in the case and there is any kind of close judgment call the court could decide either way.

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Answered on 11/18/11, 12:56 am


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