Legal Question in Real Estate Law in California
My landlord's illegally served us with an unlawful detainer action, by serving the papers to my seventeen year old daughter. First, after this alleged service the process server for the attorney of my landlord's actually physically attacked my daughter in front of witnesses, and we did file a criminal report. Second because I did not file an answer to this illegal service, they were able to gain a default judgement. So now I need to file a motion to set aside default judgement based on several facts. One being the illegal service, and two being that the landlord's already stated that they would accept their rental monies late due to my particular situation. Or should I file a motion to quash service of summons since the original service was in fact illegal? I am in a position to sue the landlords due to the fact that the attorney they hired had this process service hired in their behalf due to chain of command or events, and attack my minor child, or rather probably all three, landlord's, attorney, and company that sent process server. My daughter had to be treated in the emergency room, and has been suffering emotionally and is distressed since such time. Please advise on all aspects. Thank you.
Samantha Williams
4 Answers from Attorneys
If you attempt to quash service, it will only delay the inevitable. You would undertake a lot of work, for little benefit. Your suit against the other three will also be of little benefit to you, because of little damages. Emotion distress of your daughter will amount to little benefit financially.
Attorney Marman is correct. It is best to file motions only when you can obtain a permanent, significant advantage. A motion to quash just delays the process. Contact the landlord's attorney, tell him/her what happened, that if you filed a motion you should be successful and the court might impose sanctions since the plaintiff was aware service was upon a minor and thus defective. Get him/her to agree to do a stipulation to set aside default judgment and attach you answer so if granted it can be immediately filed.
It would not be reasonably forseeable for the attorney or landlord to know that the server would commit an intentional tort, so you lawsuit would be against the individual and his company. If they did nothing on account of the conduct you could argue that it was ratified by the employer.
All the foregoing is good advice; I would add that you might have the greatest overall success if you address the root cause of the UD action with the landlord.
I disagree with the previous answers, aggressively defend and begin a legal offense to get the most time at your residence. Contact me directly.
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