Legal Question in Civil Litigation in California
I received a demurrer instead of an answer witjin 3I0 days. Is a demurrer personally mailed by the Defendant valid?? My understanding is that a person not in the case should serve by mail. Is this right? If so, then did Defendant defaulted ? Can I file for default based on improper service ?? The court docket also shows that the defendant did not file the Demurer in court
3 Answers from Attorneys
A defendant may mail the demurrer instead of personal service. The defendant must file the demurrer with the court also.
I would actually check at the courthouse and not rely on the online docket to see if the demurrer has been filed. If it hasn't been filed, you might file a request for entry of default if the 30 days for a responsive pleading have run. My colleague misunderstood your question. It should be a third-party who is serving the pleading by mail, since it reflects badly if the defendant's credibility is called into question because of this. The more important issue, though, is whether the demurrer is on file with the court.
I agree with Mr. Cohen. Even if the demurrer should have been served by someone else, it seems unlikely that you would be able to get a default on that basis. If you do, the court would probably grant a subsequent motion for relief.
Online dockets are often incomplete. You should not presume something wasn't filed just because it is not listed online.
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