Next step. Had judgment vacated

[abmyers]

So I had court this week and the judge granted my motion to have a default judgment vacated and set aside. Unfortunately, he is requiring me to answer the complaint within 10 days, and set a date for a case management conference.

I still have never been served so I think it sucks that I am being forced to answer but whatever.

Can I use the lack of personal jurisdiction as an affirmative defense, at this point, since I wasn't served? (I had lots of proof in my declaration in my motion to vacate). If not, how should I go forward? I plan on filing an answer but after that I'm lost.

[IHateCAs]

ummm. It sucks that you are being forced to answer? What did you think was gonna happen after you vacated?

You have to defend the lawsuit now.

[abmyers]

Why? The court still lacks personal jurisdiction until the plaintiff serves me with summons and complaint. I made a special appearance not a general appearance.

[swtguy]

Why? The court still lacks personal jurisdiction until the plaintiff serves me with summons and complaint. I made a special appearance not a general appearance.

So, one of your answers is that the court lacks personal jurisdiction.

[abmyers]

Ok. So I put down some affirmative defenses and then the plaintiff asks for discovery of my evidence of no service etc right?

Then when they realize I have a lot of evidence I was not and could not have been served, they will likely do what?

Also, I have a collection account for this I REALLY want to get rid of. They are offering me a settlement of $3,000 for the debt (suit is $5200) for deletion of the CA record. Worth it or should I keep it up in court?

[abmyers]

This is what an attorney told me regarding the issue of personal jurisdiction:

I think you are safer using the Judicial Council Form. It's Judicial Council Form number PLD-C-010 and it's called ANSWER-Contract. It's a standard check a box form which they are used to seeing and is not subject to attack for technical defects. You can get the form on the internet. There is a place in the form to add your affirmative defenses.

You could have made a motion to dismiss before the judgment was entered, but once that happened, you no longer had that option. And you can't do it now, because the judge has ordered you to file and answer, so that's what you have to do. Once you file the answer, as you have apparently been ordered to do, the service is no longer an issue because the service of the summons simply gives the court jurisdiction over you, which it acquired when you appeared and asked for judicial relief. If the court ordered you to answer, the service issue is a dead issue. However, you should check the minute order to make sure you correctly understood the court's ruling.

Assuming all is as above and you file your answer, keep in mind that this merely starts the case. I don't know the docket schedule at that court, but it will likely be a long time before this matter gets assigned to trial. When you complete the case management questionnaire, and go the case management conference, you should request a jury trial, which will create a large expense in time for the other other side. You can then talk to them about settlement sometime down the road, but I wouldn't be in a big hurry. Time and money is on your side.