Legal Question in Real Estate Law in California
On Nov. 1 an ex-parte temporary restraining order was issued against the defendant who failed to show up. On Nov. 24, the defendant filed a filed an opposing motion for the preliminary injunction and made several references about my complaint in her response. I understand that a defendant made a �general appearance� at the time she filed an opposing motion for the preliminary injunction per Factor Health Management v. Superior Court (2005). On December 3, the defendant showed up for the order to show cause and argued that she was not served with a summons. When did the defendant become subject to the court�s jurisdiction?
On December 4, the judge mailed the order granting me a preliminary injunction. And order that I serve defendant with a summons and complaint. I believe that defendant was properly served with a complaint, and that because she made a general appearance, and failed to squash the complaint and failed to respond within 30 days, she already defaulted on my claims.
Am I correct on this?? Also, what gives the judge authority to pre-empt the Code Civil Procedure 473?
2 Answers from Attorneys
If the defendant has not been served with the summons and complaint, the defendant has not been served with the summons and complaint. Making a general appearance on a restraining order does not dispense with the requirement that you have the summons and complaint served.
Furthermore, if the judge orders you to serve the defendant with the summons and complaint, you better do it (or re-do it), complying fully with the rules covering service of summons and complaint, and at the proper location. I'd never put my supposed wisdom of service of process on the line with that of the judge's! Read the written orders of the court carefully.
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