Legal Question in Civil Litigation in California

Re: Plaintiff's failure to appear

You may have a shot of vacating the judgment if you can convince a judge that the process server was mistaken in his declaration; this may be difficult, since judges have a tendency to believe what a registered process server says. But if you want a lawyer to look into it, and you're in Southern California, feel free to contact me. You'll need to act quickly, however.

Re: Plaintiff's failure to appear

If you were never served then the court never gained jurisdiction over you, and you can challenge the order -- provided that you act quickly upon learning what happened.

The court acted properly based upon the evidence available to it. The proof of service said you had been served and there was no evidence to the contrary, so the judge believed it. If courts could not enter defaults in such situations defendants would be able to win by simply ignoring summonses, even if they were served properly.

The court set the June 5 hearing to find out why there was no evidence in the file that you had been served. Presumably that evidence was filed before June 13 when the defendant asked for a default. The July 5 hearing date may have been automatically taken off calendar once these papers had been filed, or when the default was entered.

Even if the hearing should have proceeded its sole purpose would have been to find out why the plaintiff hadn't appeared on June 5. An unsatisfactory answer might have led the judge to sanction him but would not have justified a dismissal of the case, The threat of dismissal, after all, was for failure to serve you and not for failure to appear in court.

Unless you have known about all of this for a long time you should be able to file a motion for relief from the default and the resulting default judgment. If the judge believes you were not served she should grant the motion; most judges will do so even if they have some doubts.

Motions for this type of relief are not especially complex but you should not try to do this on your own. Get a lawyer if at all possible, since there are many ways a layperson can mishandle such a motion. You may not get a second chance if this happens.

Keep in mind that winning this motion is not the same thing as winning the case. The plaintiff will most likely be allowed to press his claim against you and you will still have to mount a defense. You will probably want a lawyer to represent you in these further proceedings, too,

Re: Plaintiff's failure to appear

If you are talking about an August (8/19) default, that implies clearly that this was a year ago. If so, you had/have only 6 months max from time of 'notice/knowledge' to file appropriate motions. If not, and it was recent, then you must file to set aside the default based upon the facts you can prove to the court.

If you are timely, and if you need to have legal help, as it appears, feel free to contact me.