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  1. #1
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    Default How to Contest a Proper Service of Process

    My question involves court procedures for the state of: California.

    I am a defendant in an unlimited civil case for personal injury. The plaintiff is in the process of filing a Default because I did not file an answer within the allotted time. The reason for not filing an answer is because I was not properly served. I received the summons, but I have never signed any papers acknowledging I have been served.

    The judge said, since I did not file an answer, I would have to contest the service. I've no clue how to do that; specifically if there is a form to do this with.

    Is there anything I can do to prevent the court from awarding the case to the plaintiff by default? Will filing an answer now benefit me, or am I just wasting money by filing it? If I lose, will the amount awarded be determined by the court or will the plaintiffs automatically win what they are asking for?

    Please let me know if there is any other information I should include.

  2. #2
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    Default Re: How to Contest a Proper Service of Process

    what court is this in? There are rules as to what is proper service and unless you have researched those rules to determine if there was or wasn't proper service, you may be fighting a windmill here.

  3. #3
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    Default Re: How to Contest a Proper Service of Process

    Quote Quoting jk
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    what court is this in? There are rules as to what is proper service and unless you have researched those rules to determine if there was or wasn't proper service, you may be fighting a windmill here.
    Civil? I think that's the question you're asking. I'm 90% sure it wasn't a proper service, as it was given to me by a third party 2 weeks after the plaintiff had signed stating they had served me personally.

  4. #4
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    Default Re: How to Contest a Proper Service of Process

    here are the basic rules of service:

    http://law.justia.com/california/codes/2009/ccp.html

    scroll on down to Chapter 4 and read what is allowed. Then, if you do not believe the service as rendered fits within the allowed means of service, you write your motion with what was not met to make the service proper.

    You do realize this will essentially just delay things, right? You may get a new and proper service right there in court during the hearing for this.

  5. #5
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    Default Re: How to Contest a Proper Service of Process

    Quote Quoting jk
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    here are the basic rules of service:

    http://law.justia.com/california/codes/2009/ccp.html

    scroll on down to Chapter 4 and read what is allowed. Then, if you do not believe the service as rendered fits within the allowed means of service, you write your motion with what was not met to make the service proper.

    You do realize this will essentially just delay things, right? You may get a new and proper service right there in court during the hearing for this.
    415.30.
    (c) Service of a summons pursuant to this section is deemed
    complete on the date a written acknowledgement of receipt of summons
    is executed, if such acknowledgement thereafter is returned to the
    sender.

    I never acknowledged I received the summons. There was no paper to sign that looked similar to the following:
    Code:
                                          NOTICE
       To:  (Here state the name of the person to be served.)
       This summons is served pursuant to Section 415.30 of the
    California Code of Civil Procedure. Failure to complete this form and
    return it to the sender within 20 days may subject you (or the party
    on whose behalf you are being served) to liability for the payment
    of any expenses incurred in serving a summons upon you in any other
    manner permitted by law. If you are served on behalf of a
    corporation, unincorporated association (including a partnership), or
    other entity, this form must be signed in the name of such entity by
    you or by a person authorized to receive service of process on
    behalf of such entity. In all other cases, this form must be signed
    by you personally or by a person authorized by you to acknowledge
    receipt of summons. Section 415.30 provides that this summons is
    deemed served on the date of execution of an acknowledgment of
    receipt of summons.
           _____________________
           Signature of sender
    
                           ACKNOWLEDGMENT OF RECEIPT OF SUMMONS
       This acknowledges receipt on (insert date) of a copy of the
    summons and of the complaint at (insert address).
    
    Date: ______________________
        (Date this acknowledgement
           is executed)
    _________________________
       Signature of person acknowledging
        receipt, with title if acknowledgment
        is made on behalf of another person
    Then, if you do not believe the service as rendered fits within the allowed means of service, you write your motion with what was not met to make the service proper.
    What form would I use to do that (if there is a form)?

    I don't see a problem with delaying the process, but if I am going to lose I want to have the knowledge that I did everything I could to stop it.

  6. #6
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    Default Re: How to Contest a Proper Service of Process

    that is for a mailed summons. try this one:

    415.10. A summons may be served by personal delivery of a copy of
    the summons and of the complaint to the person to be served. Service
    of a summons in this manner is deemed complete at the time of such
    delivery.
    The date upon which personal delivery is made shall be entered on
    or affixed to the face of the copy of the summons at the time of its
    delivery. However, service of a summons without such date shall be
    valid and effective.
    It sounds like you might be able to contest the date of service, at best but the fact is; you were served. If you did not respond within the allotted time after that service, you have defaulted.

    You do not have to sign anything acknowledging service if it was delivered to you personally.

    So, why did you not file a response when served?

  7. #7
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    Default Re: How to Contest a Proper Service of Process

    More than 2 weeks of the 30 limit for response had passed. I spoke to an attorney a few days after I was served who said they would submit an answer. Sometime later I received a letter asking for $5000 for the services, which I couldn't pay. I let the 30th day come and go, due to the fact that I am uninformed concerning anything to do with legal actions or processes. Yeah, I'm stupid, and now I'm trying to figure out how to get out of this mess.

  8. #8
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    Default Re: How to Contest a Proper Service of Process

    not sure you can get out of this mess. About the best you can do is try. You might be able to forestall the default ruling but there are no sure things. You needed to seek an extension at the time due to the delayed notice and the situation with the lawyer. There is no real excuse to not take any action but the judge can allow a lot of things.

    about the best I could suggest is that you recieved the summons on (XXXXX date) and not on the date noted in the court records. You might not even be believed at this point as it appears to simply be a means to stall the process. Then, you need to state the attorney you spoke with and exact dates. If it comes about where you ran out of time, the judge might deny the default judgment and allow you time to file a response.

    You would be better off with the assistance of a lawyer but I suspect that isn't much of a possibility.

    but $5k for filing a response? There is something not right about that. What kind of defense were you going to file?

  9. #9
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    Default Re: How to Contest a Proper Service of Process

    Delay might be what I need if it allows me to submit a response.

    The lawyer and I hadn't discussed in detail how I was to defend myself.

  10. #10
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    Default Re: How to Contest a Proper Service of Process

    Quote Quoting DavidWalsh
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    The lawyer and I hadn't discussed in detail how I was to defend myself.
    then you will be hard pressed to claim he was supposed to file an answer. That information would be required in order to file an answer. That would mean you probably sat down with him (if even that) and after a very minimal exchange of information, decided you could not hire him. That is not much of an argument for you being delayed due to your understanding an attorney was filing, or going file, an answer for you.

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