Motion to Vacate

[Caring4U]

My question involves business law in the state of: California (Sacramento)

Here is the deal...I had the sheriff's officer serve a small claim's matter to the defendant, but when the sheriff came to the address, the defendant was not home; however, the roomate was home and the sheriff served it to the roomate. In addition, the sheriff mailed the forms the same day to the home address as well, to serve that way.

I went to court and the defendant did NOT show up and I was awarded $900 for my claim, after I explained it to the judge.

After 35 days passed from the hearing, the defendant filed a "Notice of motion to vacate (cancel) judgment." He claimed in the notice that he was not served directly and claimed that his roommate "forgot" to give him the papers until "after" the hearing date. (And I am sure the mail was not magically delivered to him either).

There is a new court date, which I understand that it will be at the discretion of the judge as to whether or not the case can be re-tried or have it stand the way it is forever, without the defendant ever being able to appeal it. But, I was only served the papers through standard 44 cent stamp delivery...from the court and not from the defendant!

I have two questions as a result of and in-light of what was spoken above:

1) Does the defendant have a chance to have the case reheard?

2) Should I bother showing up to court, because I was not properly served?

I have been to small claim court cases many times and before the judge even gets in the room, all cases are checked for proper service (via sheriff or someone hand delivering it...its called proof of service). I have already gone to court and waited and I am not to fond of going twice. I want to make it as difficult as possible for the defendant, since he stabbed me in the back twice (once for the $900 and twice for not showing up to court). Could it be possible for me not to show up to court and the case held off until proper proof of service is attained? By the way, I am moving in a month, so I would like to see the defendant serve me then...LOL

[cdwjava]

The Code of Civil Procedure covers this. First class mail should be proper service (CCP 415.30) as is the combination process served by the Sacramento Sheriff's Department (CCP 415.20). Whether the Sheriff's Department will or has presented the proper proof of service by mail to the court, who knows?

http://leginfo.ca.gov/cgi-bin/displa...=415.10-415.95

YOU should show up to court as you have been served by mail and that should be valid. If you want to stand a chance of prevailing in the judgment, then show up in court. If you want to play games, go ahead, but don't expect enforcement of YOUR judgment if you do. As a note, courts do NOT have a sense of humor and really do not care who "started it" when these games are played.

[Caring4U]

Thanks for replying. But who is to say that the mail was lost? I cannot be liable for lost or stolen mail or mail that was delivered to wrong address! Wait a minute...maybe my roommate all of a sudden forgot to give me my mail until after the hearing...two can play that game...and yes...I do want to play. After everything this jerkoff put me through and I already showed up to court fully prepared...I am not going to waste any more of my time and money pursuing this matter.

I don't agree with your answer, because I have been to countless number of small claim cases and there always has to be proof of service via sheriff or a friend or an agency that personally hands the papers to you! The judge will not give you any time of day if this has NOT been done. I am sorry, but a simple letter in the mail will NOT do...there needs to be more! I really do not mind playing the game!

[cdwjava]

Thanks for replying. But who is to say that the mail was lost? I cannot be liable for lost or stolen mail or mail that was delivered to wrong address! Wait a minute...maybe my roommate all of a sudden forgot to give me my mail until after the hearing...two can play that game...and yes...I do want to play. After everything this jerkoff put me through and I already showed up to court fully prepared...I am not going to waste any more of my time and money pursuing this matter.

Well, go ahead and play. But, you run the risk of him winning his motion due to your non-attendance. I guess the $900 judgment is just fun money for you.

First class mail is considered valid delivery of a great number of legal documents as the legal presumption is that it got delivered to where it was going. You are certainly free to attend court and commit perjury later on.

I don't agree with your answer, because I have been to countless number of small claim cases and there always has to be proof of service via sheriff or a friend or an agency that personally hands the papers to you! The judge will not give you any time of day if this has NOT been done. I am sorry, but a simple letter in the mail will NOT do...there needs to be more! I really do not mind playing the game!

Ya know, I really do not care if you agree with me or not. What you disagree with is California state law. If the local courts are not recognizing service by mail, that's their business. But the CCP DOES recognize it.

415.20. (a) In lieu of personal delivery of a copy of the summons
and complaint to the person to be served as specified in Section
416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by
leaving a copy of the summons and complaint during usual office
hours in his or her office or, if no physical address is known, at
his or her usual mailing address, other than a United States Postal
Service post office box, with the person who is apparently in charge
thereof, and by thereafter mailing a copy of the summons and
complaint by first-class mail, postage prepaid to the person to be
served at the place where a copy of the summons and complaint were
left. When service is effected by leaving a copy of the summons and
complaint at a mailing address, it shall be left with a person at
least 18 years of age, who shall be informed of the contents thereof.
Service of a summons in this manner is deemed complete on the 10th
day after the mailing.
(b) If a copy of the summons and complaint cannot with reasonable
diligence be personally delivered to the person to be served, as
specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may
be served by leaving a copy of the summons and complaint at the
person's dwelling house, usual place of abode, usual place of
business, or usual mailing address other than a United States Postal
Service post office box, in the presence of a competent member of the
household or a person apparently in charge of his or her office,
place of business, or usual mailing address other than a United
States Postal Service post office box, at least 18 years of age, who
shall be informed of the contents thereof, and by thereafter mailing
a copy of the summons and of the complaint by first-class mail,
postage prepaid to the person to be served at the place where a copy
of the summons and complaint were left. Service of a summons in this
manner is deemed complete on the 10th day after the mailing.

And,

415.30. (a) A summons may be served by mail as provided in this
section. A copy of the summons and of the complaint shall be mailed
(by first-class mail or airmail, postage prepaid) to the person to be
served, together with two copies of the notice and acknowledgment
provided for in subdivision (b) and a return envelope, postage
prepaid, addressed to the sender.

If the service was improper, it would be because it failed to comply with these sections. If you disagree with my post, it is not me you disagree with, it state law.

It appears from your post that you would rather "play" then attend the hearing and attempt to prevail and thereby receive your award. Clearly the money is not important to you. But, that's your choice.

As for your wanting to play, if you want to play Romper Room like a child, then go right ahead. But, pre-school games are not an issue for this site.

[Caring4U]

I really do hear what you are saying, but I really fed up and tired of dealing with this jerf-off...I am just plain tired...it seems to me that the ones who suffer in the end of it all, is the plaintiffs! Even if the plaintiff wins...they suffer a lot more than the defendants. The Plaintiffs will spend more time, energy, and money pursuing their defendants than the other way around. All the defendant has to do is...show up for a court date. Of course, in my case, not show up and make me run around with my head between my legs, thus wasting my time and my money to go to court again...its plain not fair. If he wants to play that way, so can I. I am the victim here and I will drag it out and make it difficult and as frustrating as possible for this defendant!

Besides...I already plan on going to court...but I am not going to show up for roll call and I will wait to see how it all pans out and see if it is seen before the judge and than I can suddenly appear, if it looks like the case is going to be heard...that is probably what I am going to do. Besides...like you said...if snail mail is a valid delivery method, than the case should not be heard anyways, because I actually had a sheriff deliver the court papers "certified" through the mail...in addition to leaving them with this defendant's roommate. The defendant is past his 30 days to appeal the case and all he can do is claim that he was not served properly (which gives him 180 to file...which is this motion to vacate judgment). And if the judge believes that the defendant was not properly served...than a new case can start immediately or at another date....but if the judge believes that the defendant was properly served, then the case will be thrown out and the defendant will never be allowed to come against it ever again!

We shall see and I will keep you informed...good or bad of the outcome.

[cdwjava]

I really do hear what you are saying, but I really fed up and tired of dealing with this jerf-off...I am just plain tired...

Maybe so. But, the way to get your pound of flesh is to prevail. You will not prevail by trying to game the court system in some vain hope you can tee the guy off. All you will do is give him another shot at avoiding paying you. Heck, he might win by default and you will not be receiving a penny from him. Who knows?

I am the victim here and I will drag it out and make it difficult and as frustrating as possible for this defendant!

No, all you will be doing is granting him more time and opportunity not to pay you. And, giving him a real shot at getting your judgment reversed.

Besides...like you said...if snail mail is a valid delivery method, than the case should not be heard anyways, because I actually had a sheriff deliver the court papers "certified" through the mail...in addition to leaving them with this defendant's roommate. The defendant is past his 30 days to appeal the case and all he can do is claim that he was not served properly (which gives him 180 to file...which is this motion to vacate judgment).

By my reading of the CCP it appears he was served validly. He would have to come up with a compelling story as to why the mail should be deemed improper or unreliable service. Maybe the courts in Sac. County lean that way these days. They did not do so 20 years ago when i was with the Sac. S.O.

We shall see and I will keep you informed...good or bad of the outcome.

Please do.

[Caring4U]

I stumbled across this law, which allows me NOT to be present at the motion to vacate:

116.740. (a) If the defendant was not properly served as required
by Section 116.330 or 116.340 and did not appear at the hearing in
the small claims court, the defendant may file a motion to vacate the
judgment with the clerk of the small claims court. The motion shall
be accompanied by a supporting declaration, and shall be filed within
180 days after the defendant discovers or should have discovered
that judgment was entered against the defendant.
(b) The court may order that the enforcement of the judgment shall
be suspended pending a hearing and determination of the motion to
vacate the judgment.
(c) Upon a showing of good cause, the court may grant the motion
to vacate the judgment. If the plaintiff is not present, the court
shall hear the motion in the plaintiff's absence.

[cdwjava]

Hearing it does not mean you will prevail. No response, only one voice.

Of course this only permits you to avoid appearance in the event of improper service. It is not clear that there was improper service.

[Caring4U]

Straight up with you...the motion to vacate was heard today and I came late, to miss role call. The defendant did show up (which allowed me to get a glimpse of what he looks like...I had never seen him before) and he tried to explain his case to the judge, but of course, the judge was not there to hear his case, because the motion to vacate was about why he felt he was not served properly. The judge did not grant his motion, because she said that an actual sheriff served his roommate (a competent adult over 18 "AND" sent a certified mail to his home address. She also asked where the roommate was and the defendant replied, "At work." It doesn't really help his case if he is claiming that his roommate forgot to give him the papers until after the hearing (hard to believe) and he did not show up to explain to the judge that this was so. Never the less, the judged said that the defendant should call me and try to work something out in regards to the case, because there was nothing else he could do and he filed his motion more than 30 days past the date of judgement.

The defendant actually called later today and left a message saying that he wanted to talk to me about my case and that he had "documents." Whatever that is suppose to mean. I know this defendant's type...I know all about his kind...he is going to try to make me accept less or try and sweet talk his way...I won't settle for less than a dime! BUT...I will give him "one" chance of grace and allow him to square up his debt. If not, than I mark his credit record, garnish wadges, put liens on whatever he owns, etc. He would be a fool not to jump on this offer. I wonder how long I should give him?

[Dogmatique]

You realize that getting the judgment is the easy part, right?

Collecting can be downright impossible. Specially from a defendant who is determined to basically screw the plaintiff.

It can cost you more to collect than the judgment is worth - think very carefully about this.