Legal Question in Real Estate Law in California

I had someone serve Defendant with a TRO and OSC RE: Preliminary Injunction with Memorandum of Points and Authorities, Declarations, and Verified Complaint. A summons was not served because I thought the OSC gave the court jurisdiction over the Defendant. Defendants submitted their opposition, but did not challenged nor addressed the Complaint claiming she did not receive a summons. Its over 30 days, and Defendant did not respond nor demurer to the Complaint. Can I file for an entry of judgment???


Asked on 1/02/14, 6:54 pm

3 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Your starting point would be to prepare and take to the clerk a Request for Entry of Default on Judicial Council Form CIV-100. This form also allows you to request entry of judgment, but you'll need to decide whether under the facts of your case a clerk's judgment would give you what you need, or whether to apply for a judge's judgment. If you thought you needed a TRO, maybe a clerk's judgment is inadequate. Also, the clerk may question your entitlement to a judgment, due to the lack of a returned summons -- the notion that a submission of an opposition is a sufficient "appearance" to give the court jurisdiction over the defendant may be beyond the clerk's knowledge or authority to decide. I'd sure try to get default entered, but I can't say how far you'll get, with the unusual deviation from prescribed summons-service procedure.

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Answered on 1/02/14, 8:35 pm

No. Appearing in response to a TRO is a "special appearance" and does not give the court general jurisdiction over the person. You must serve the summons.

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Answered on 1/03/14, 12:05 am
Anthony Roach Law Office of Anthony A. Roach

You cannot take the default of someone who has not been served with a summons. Sneaking around as Mr. Whipple suggests is bound to get you in trouble and be a big waste of your time.

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Answered on 1/03/14, 6:53 am


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