Legal Question in Appeals and Writs in California

Appeal Default Judgment when Summons Not Served

Selling a property & it has a judgment lien. An Abstract of Judgment for a Default Entry of Judgment by Clerk was recorded.

NEVER SERVED w/ summons. Process server went to mom-in-law's, was told by her, ''Thats my son-in-law, he doesn't live here or get his mail here.'' Server's replies, ''Thats okay, you can give this to him anyway.'' She accepted the package. All future packages, sent US mail, were turned away with, ''Does not live here.''

Jun'02 moved from last known address plaintiff had. Left fwdg address at PO. I rec'd 2 demand letters from plaintiff, Oct'02 & Jan'03, 4 & 7 mo's after moving. Didn't respond since they were inflexible, as previous attempts to settle had shown. Orig'l summons, limited civil, was filed Feb'03, w/ Default entered, May01,2003.

What forms do I need to file to have the judgment & lien removed? (have PDF copies of most all CA Jud Council forms) How should the pleadings be worded? As moving papers or order to show cause. Know filing must be with appellate division Superior Court & not Court of Appeals.

Time of the essence so I don't lose buyers. Escrow extended once, from Nov07 to Nov21. Want to complete sale of property before buyer's add'l costs due to delay become too high.


Asked on 11/12/03, 12:57 am

2 Answers from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

Re: Appeal Default Judgment when Summons Not Served

It is too late to appeal, but you may still be able to move the trial court to set aside the default and the judgment based upon the improper service.

Once you have done that (and if you are successful), the case will proceed and you will have to defend it. But don't count on this being a very speedy process. It will be a lot faster than an appeal, but it will take at least three weeks from the time you file the papers until you get a decision.

There is no form to use for this procedure. You actually have to prepare a written motion which the other side will probably oppose. Keep in mind that they already had someone declare under penalty of perjury that you were served properly, so you may lose the motion and be stuck. You should therefore hire an attorney to handle this motion for you if at all possible.

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Answered on 11/12/03, 1:14 am
OCEAN BEACH ASSOCIATES OCEAN BEACH ASSOCIATES

Re: Appeal Default Judgment when Summons Not Served

No form is going to help you. Believe it or not attorney's do more than form practice. Get representation immediatey. You must file a motion not an appeal.

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Answered on 11/12/03, 3:13 pm


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