Legal Question in Civil Litigation in California
Service of Process on Non-Resident Defendant
My father is a business owner who was defrauded by a local used car salesman. He was later sued by his bank for monies owed on checks issued by the defrauding party which were returned because of insufficient funds. When he was sued he was living in Canada and service was made to an employee at my father's business address in California and by mail to that same address. My father never directly received any notice of the lawsuit and did not reply to the complaint. Subsequently, a default judgment was entered against him in California. Does he have a basis to argue that service upon him was inadequate and that the judgment should be overturned? Would it be worthwhile for him to retain an attorney to pursue such a course of action? Thank You
3 Answers from Attorneys
Re: Service of Process on Non-Resident Defendant
Your recitation of the facts is very confusing.
However, your father should definitely seek to set
aside the default judgment. Whether it would be worth
hiring an attorney to do it depends on the amount
of the judgment. If the attorneys' fees would equal or exceed
the amount of the judgment, then it's not worth doing.
Re: Service of Process on Non-Resident Defendant
Like Mr. Genser, I am confused by your explanation of the facts. I can understand a bank suing someone for writing a bad check, but why was your father sued for receiving it? There must be more going on here.
There is a procedure for serving a summons in California called "substituted service" under which service may be attempted personally at the defendant's residence or place of business followed by mailing to the same address. This seems to be what happened here, but the plaintiff has to show that he could not serve the defendant personally after "reasonable dilligence." If your father's wherabouts were not reasonably knowable to the plaintiff, then substituted service would be appropriate. I would need more information here; even if substituted service is appropriate in this case, it is possible that they did it wrong.
You say your father "never directly received any notice of the lawsuit," but we lawyers know fudge words when we see them. It sounds like someone told him about it (giving him "indirect" notice, in your terms) and that is enough. After all, you say that the service was at his place of business, so he was presumably in contact with people there. It sounds like he chose to ignore the summons and complaint, which was not a wise choice.
Depending upon the circumstances, he may be able to have the default set aside. The court is free to order him to pay a penalty of up to $1,000.00 to the plaintiff's attorneys for their trouble or it could deny the motion altogether. And, once the default is set aside, he still has to fight the lawsuit.
If the amount at stake is large enough to justify the legal fees and the risk of this penalty, then he might want to give it a try. Feel free to call me if you like; I've been able to have some defaults set aside in my time.
Re: Service of Process on Non-Resident Defendant
If the judgment amount is more than $2-3,000, then a motion to set aside should be filed. He might have good cause to set it aside. He would also need to have a good defense to the suit.
We handle these types of cases if you are interested. Please call or email to discuss.
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