Legal Question in Landlord & Tenant Law in California

Security Deposit, Proof of Service, Motion to Vacate

Hello-

We recently won a default judg. against a previous landlord for $3K(sec dep) + $2K(bad faith). The defendant's ''property agent'' has now filed a motion to vacate the judgment. I would like some advice on its merits in my particular case, and how to best argue against it. A friend did the service of process. He went one day, to the place where the defendant lives, and the defendant answered the door, but claimed that she was not the person he was looking for. The next day, he came back (since he was quite sure it was, in fact, her), saw her and her husband, and saw her run to the back of the house. Nonetheless, he answered the door, and my friend told him that she was served. He then mailed the substitute service. When she finally returned part of the sec. dep., she addressed the letter to ''[my name] c/o [my proc. server's name]'' (so she rec'd the letter, since she doesn't know him!)

He filled out the proof of service form, and wrote down the guys name who he served and wrote (husband of defendant). The defendant claims to be unmarried. Whether or not this is true, she represented him as her husband to us, and she does live with him. Does she have a leg to stand on?

Thanks!


Asked on 10/11/05, 2:34 pm

2 Answers from Attorneys
Carl Starrett Law Offices of Carl H. Starrett II

Re: Security Deposit, Proof of Service, Motion to Vacate

I've tried to fight stuff like this before, but judges will bend over backwards to let a defendant have a trial on the merits rather than lose by default.

In one recent case, I got a default judgment against a husband a wife. The registered process server stated that she made numerous attempts at their place of business and finally served wife and also served wife on behalf of husband and the required follow up mailing. Husband and wife filed a motion to vacate, claiming lack of service and claimed the business was closed the day of service.

I even found other cases where they had pulled the same stunt, denying receipt of service of process. Nonetheless, the court took their word over the word of a process server.

You should point out to the judge that the "property agent" has no standing to represent the owner in this matter. The landlord should be the one to file the motion, not the property agent.

Read more
Answered on 10/11/05, 2:49 pm
H.M. Torrey The Law Offices of H.M. Torrey

Re: Security Deposit, Proof of Service, Motion to Vacate

your particular situation can be a "tricky" one. meaning, the defendant's agent is attacking the default judgment from a procedural (improper service of process), not a substantive issue (merits of your case). from the facts you have given, your substitute service of process procedure appears "perfect" under the circumstances, especially with the defendant "hiding' from your server. however, sometimes a court wants to rule on the merits of a case rather than dismissing it on a procedural error. so, you may want to definitely consider having an attorney help you outside of court with this motion to vacate to hopefully preserve your default judgment. however, if in fact the court does grant the motion, it sounds like your case is far stronger than the defendant's since they hid from your process server and never even showed up to court. it sounds like they are simply trying to avoid your inevitable court "victory" because they lack any valid defenses to your claims. so, remain confident in your case's merits, even if it does go back to court, and for peace of mind, you may want to have an attorney help you with your arguments herein. you may contact us today for further assistance.

Read more
Answered on 10/11/05, 4:42 pm


Related Questions & Answers

More Landlord & Tenants questions and answers in California