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Everything posted by nivekeugol

  1. OK, I'm continuing to do the research on getting the judgement vacated. This what I've found so far. There can actually be a time limit to filing a 473(d) motion if the judgement is facially valid, that limit is 2 years. Which makes this motion unusable for me if that's the case. If it is facially void, there is no time limit on the motion. In Ellard v. Conway, 114 Cal. Rptr. 2d 399 - Cal: Court of Appeal, 4th Appe (2001) They lost on service but cited these cases to make their case. "[Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]" (Dill v. Berquist Construction Co. (1994) 24 Cal. App.4th 1426, 1444, 29 Cal.Rptr.2d 746.) And Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service. (Brown v. Williams (2000) 78 Cal.App.4th 182, 186-187, fn. 4, 92 Cal.Rptr.2d 634; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2001) ΒΆ 5:485, pp. 5-113 to 5-114.) And (1) The court may set aside a void default judgment at any time under section 473, subdivision (d). In addition, the court has inherent equitable power to set aside a default judgment at any time for extrinsic fraud or mistake. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300 [24 Cal.Rptr.3d 780].) So it seems to me that Fraudent Service should automatically cause the judgement to be void. I also found this gem... For 473(d), Defendant must show three elements. 1. Meritorious Defense... Not sure how I can go about this. Or even what Meritorious means in this context. 2. Satisfactory excuse for not presenting defense in the first place... Fraudulent service in person) with evidence should cover that. Incorrect address (CDL, interim license dated 6 months before service, ditto SR22 form dated same), Completely mismatched description on Proof of Service (CDL, Actually appearance.) 3. Diligence in seeking to set aside judgement once discovered... Since receiving the letter on the garnishment on June 19th, I have filed an exemption on the garnishment with the Sherrif's Dept., called Legal Aid twice, retrieved court documents, and attended two legal clinics to date. That should cover the diligence. Questions Does fraudulent service create a lack or want of personal jurisdiction? How can I have a Meritorious Defense without defending myself? DillvBerquistConst473d.pdf ellardvConway473dServicevoidinlaw.pdf
  2. Like the title says, I discovered that I had been sued and a default judgement entered only by my employer sending me a garnishment notice by mail from the Sheriff"s Dept. As soon as I received the notice of garnishment, I called the local Legal Aid Society. Since I didn't remember getting served for the suit, they recommended that I go to the court that ruled the default judgement against me and get the proof of service documents from the case. I retrieved all of the documents from the suit and it appears that I was served fraudulently. The server stated under penalty of perjury that he served me personally in January of 2011. There are some obvious issues with that. First, in the service document I'm described as a white male, 5'8", 190 lbs, brn hair, brn eyes [I'm 6'0" , at the time 220 lbs, brn hair, blue eyes.] Additionally, he served me at an address that I hadn't lived at for more than 8 months prior to his service. As for the first part, my driver's license and my actual appearance negate that. For the second part, I have a couple of documents from the DMV, dated from more than 6 months prior to the service, that have my changed/current address. The original CDL also shows it's issuance in 2010 and has never had an address change. I also have my employment record with my current employer. I hired on there in April 2010 using my current address. After getting the documents I called back Legal Aid and they said that while it was a case that they would normally help someone like me [I qualify financially,] they are not taking any new consumer cases at this time and that there is no end date for this hold. They referred me to a free law clinic put on by a local law school at the public library. I went, documents in hand, a week ago Wednesday. I met with what I assume was a law instructor and student to discuss my case. They asked me if I was willing to fight the garnishment/case and I told them I was. After some discussion, they pointed me to the city law library with the sections of case law and forms I'd need to get started. I went earlier this week. Also, with their recommendation, I filed an exception with the Sheriff's Dept on the garnishment. This no doubt started the ball rolling as far as legal repercussions are concerned. My questions... It looks like the first things I should shoot for are getting a stay on the garnishment and make a motion to set aside the judgement. I will do this by claiming that there was extrinsic [new word for me] fraud committed to get that default judgement. Presuming I succeed, where does that leave me legally? I'm thinking all I've done is just rolled the clock back to the day before I was served and I'm standing there defending myself against a pending lawsuit. From what I read, I'd use CA 473 (d), Lack of, or improper service of summons. Are there any examples available that show me how to write that to address fraudulent/perjured service? Should I make a separate request for a stay of garnishment and how do I word this as well? The advisor at the clinic said that I should make a motion for dismissal. If the judge denies that then I should ask for an opportunity to answer. On what grounds can I do that? I'm finding statute of limitations and toll confusing. I was told that none of the mandatory dismissal laws apply because fraudulent or not, I was served and adjudicated in a timely manner. This would rule out 583.210(b) POS must be filed within 60 days of time of summons, 583.310 failure to bring to trial in 5 years, and 583.250 3 years without service or prosecution. Are there any other avenues for requesting dismissal? Is a Motion of Demurrer something I should look at? [brand new word for me. lots of those recently.] My understanding of that is I'm asking the judge that no matter what the evidence they presented in court, that there is no valid reason for me to be responsible and that I should not have to answer to the lawsuit. He could grant a dismissal based on this motion, with or without prejudice [I'm not clear here on the difference. With prejudice means they can't sue me again?] Is fraudulent service enough of a reason to request this motion? I understand that by asking for this I may be admitting to the basis of their lawsuit. How much of a problem is this? As far as the service is concerned, is there better evidence I could provide to the court for extrinsic fraud? My description is a given [and on my CDL], and I do have some minor official DMV paperwork [interim license issued and an official form dated 6 months before the service with my accurate address.] I checked into the DMV, but as of March this year they no longer issue 10 year abstracts of driver's records. I have no idea what other reasonably obtainable evidence I can offer. Do you have any suggestions? From my reading/search results I found that even if I prove that the service was fraudulent, most prosecutors will not bother to file criminal charges against the server. Is this true? It kinda sticks in my craw that this is a common thing, so much so that the legal profession has a nickname for it ["Sewer Service".] Thanks for taking the time to read all this. Any links to similar complaints, forum posts, or advise on how to proceed would be greatly appreciated.