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Help! Cap1 filed 585 documents?


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Has anyone seen this in there case?  Along with trail brief filed, Declaration of Plaintiff to waive interest filed by Cap1, Exhibit A, Memo of costs filed by Cap1 for $299.50, and finally Plaintiffs Proof of Service for 585 Documents filed.

 

Are they preparing to obtain Default judgement here?

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I would call the courthouse or look on line see whats going on.

The declaration of venue must be served upon the defendant

POS-010 FILING THE PROOF OF SERVICE

 Declaration In Support of Application for Default Judgment Pursuant to CCP §585(B)

 

If you have filed a complaint against and personally served a defendant and he or she has not responded within the 30-day deadline imposed by California Code of Civil Procedure § 412.20(a)(3), you can go to court and ask that a judgment be entered in your favor. This is known as requesting a default judgment.

A Default Judgment by the Clerk can only be entered in breach of contract cases where the specific monetary amount desired is requested in the complaint. If the monetary amount desired is not specified or a judge needs to rule on any other issue raised in the complaint, you must request a Default Judgment by the Court, which requires additional forms and is not covered in this Guide. See the "How to Request a Default Judgment by the Court" Step-by-Step guide available on our website for instructions and samples of the forms required to obtain a Default Judgment by the Court.

PROCEDURE

Obtaining a default judgment involves filing two sets of documents: first, the Request for Entry of Default and any accompanying documents (Proof of Service by Mail and Proof of Service of Summons and Request for Dismissal of Doe Defendants, if applicable); and second, the (Proposed) Judgment and any accompanying documents (Declaration RE Accrual of Interest and Cover Page and Written Agreement, if applicable, and Proof of Service by Mail). You may prevent a tardy defendant from filing their answer by filing the first set of documents on the 31st day after personal service of the summons and complaint, and file the second set of documents later.

 

Just in case

IN THE YOUR COUNTY SUPERIOR COURT
STATE OF CALIFORNIA


______________________________,

Plaintiff,

vs.

______________________________,
Defendant.

Case No.: ________________
NOTICE OF MOTION AND MOTION FOR ORDER VACATING AND SETTING ASIDE DEFAULT (AND DEFAULT JUDGMENT)], SUPPORTING DECLARATION, AND MEMORANDUM OF POINTS AND AUTHORITIES AND ORDER
Date:__________________
Time:__________________
Dept:__________________
NOTICE OF MOTION TO VACATE DEFAULT JUDGMENT

To plaintiff ______________________ [name of plaintiff] and to his/her attorney of record.
NOTICE IS HEREBY GIVEN that, a motion will be heard on the following date , time and place:______________________________________. (Date and time of motion).

The motion will be heard in the following courthouse and division/department: _____________________________________________________________, located at ___________________________ [address], ___________________ [city].

Defendant will, and hereby does, move to vacate and set aside default judgment entered against defendant on _______________________________ [date default judgment was entered].

The motion will be made on the ground(s) that the default judgment was taken against defendant through his/her mistake or inadvertence or surprise or excusable neglect or all or any combination of these]. ____________________________.
*
The motion will be based on this notice of motion, the accompanying declaration(s) of the defendant, and the memorandum of points and authorities served and filed herewith, on the records and file herein, and on such evidence as may be presented at the hearing of the motion.

Dated:___________________. Respectfully Submitted,
By:___________________________



DECLARATION IN SUPPORT OF MOTION TO VACATE DEFAULT JUDGMENT
I, _________________________, declare: I am the defendant in the above-entitled case.
(Enter your Statement of Facts Related to the case)

I declare under penalty of perjury that the foregoing is true and correct.
Executed on_________________, at________________________________, California.
Dated:___________ Respectfully Submitted,
By:___________________________
Defendant in Pro Per
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO
VACATE DEFAULT JUDGMENT

THE COURT SHOULD GRANT THE MOTION TO SET ASIDE THE DEFAULT AND DEFAULT JUDGMENT UNDER CODE OF CIVIL PROCEDURE SECTION 473( BECAUSE THE DEFAULT JUDGMENT WAS TAKEN AGAINST DEFENDANT THROUGH HIS/HER MISTAKE and/or INADVERTENCE and/or SURPRISE and/or EXCUSABLE NEGLECT, AND JUSTICE REQUIRES DETERMINATION OF THE ISSUES AFTER A HEARING ON THE MERITS OF THE CASE.
A. Grounds for Relief From Judgment, Order, or Other Proceeding. On application, the court may, on any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect (Code Civ. Proc. § 473().
B. Policy of Law Favors Trial on Merits. The policy of the law is that controversies should be heard and disposed of on their merits ( Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 694-703, 84 Cal. Rptr. 3d 351 ; Berman v. Klassman (1971) 17 Cal. App. 3d 900, 909, 95 Cal. Rptr. 417 ).
C. Court Has Wide Discretion in Granting Relief. A trial court has wide discretion to grant relief under Code of Civil Procedure Section 473 ( Berman v. Klassman (1971) 17 Cal. App. 3d 900, 909, 95 Cal. Rptr. 417 ).
D. Liberal Construction of Statute. Code of Civil Procedure Section 473( is a remedial measure to be liberally construed, and any doubts existing as to the propriety of setting aside a default thereunder will be resolved in favor of a hearing on the merits ( Berman v. Klassman (1971) 17 Cal. App. 3d 900, 910, 95 Cal. Rptr. 417 ).



Dated:___________________. Respectfully Submitted,
By:___________________________
Defendant in Pro Per
 

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It's probably statements. While my case didnt have this number, actually was maybe 1/3 of the amount for your case, the end result is still that they need that witness there. Which brings me to, was she served?

They also filed a waiver for interest in my case, and I have no clue why??? They got a default judgment against a friend of mine and they got her for 23.1%!! She failed to file an answer though.

If you filed an answer, they dont get a default judgment.

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I believe he is talking about CCP 585 and it looks like a declaration for default supporting it. It may be in error, or they did not recieve a copy of the answer(or just pretending they didn't)

 

need to look at everything the court has. If they did get a default the motion to vacate needs to be submitted pronto.

 

I don't think they had 585 documents that would be like 30 years of billing statements.

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They are probably trying to prove that my lawyer didn't answer in time. It was close, but can be arguable because of the post mark on the summons package (yes, i wasn't even served; they sent it in the fricken mail!). Either that or they are trying to scare me into settling. I received summons on 10/14; summons was filed on 10/11; my lawyer answered on 11/14. How much time is given as leaway for summons that is mailed USPS?

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If you weren't served right, I'm wondering why your attorney didn't try to quash???

Either way, for items sent in the mail, CCP 1013(a) might apply wherein it states that service is complete at the time of deposit but any right or duty to act or make a response when that right or duty is prescribed by statute or rules of the court, shall be extended 5 calendar days if the items were sent to an address in California and 10 days if outside of California. If outside of the US it's extended to 20 days.

Was your answer filed with the court on 11/14 or was it sent to the plaintiff on that date?

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Service of a summons must be personal. For it to be subserved, they had to have tried three different days at three different times.

If subserved it needs to also be mailed. Is this how you got it?

If they served you personally, your answer had to have been filed on 11/13 to be on time. If subserved (given to somebody else then mailed) your due by date was then 11/23. If they couldn't serve you personally, or subserve it, they had to have filed a declaration showing they can't serve you, and would then request service by publication.

What exactly does the docket say about service of process? How was it done according to your file?

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Thanks for the info. I was never personally served and there is nothing on the docket that says they attempted personal service. They gave it to someone to mail. I'm not sure when the answer was sent to LRLO, but the docket says it was filed at the court on 11/14. The summons was issued and filed at the court on 9/30. The proof of sub service and summons says it was delivered 10/11. That's it and I received it in the mail on 10/13 or 10/14; can't remember exact date.

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You were not served properly then! I'm becoming concerned with your attorney, sorry to say.

I would expect the attorney to respond to LRLO and their 585 by noting the improper service, as it will come out if they intend to claim your answer was late. Late according to whom? And according to what type of service? Again, I don't understand why the improper service was ignored in the first place.

Remind me, when is your SOL up?

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Last time I paid on that card was March 2009. SOL is 4 years in CA. They are reaching at this point. I am concerned about this attorney too. I told him everything he needed to know about the summons service. I'm curious as to what his plan will be.

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BTW, trial is Friday. I'll let you know what my lawyer says after I blow up his phone on Monday. I just hope he subpoenaed the witness. Could be why they pulled the 585 card.

Ouch don't tell me we are backstopping a member of the California Bar. That would be very bad.

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Let us know if you need help on Fri. talk with the attorney and see what his plan is. also is he listed as counsel of record? If you are listed as pro per then Youhave to push him a little. If he flakes get a case together just in case the astmedic MIL and Trial Brief and tailor it to your circumstances. I don't know something is surely starting to smell fishy.

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Yes, he is my counsel on record. This is what I found re: service of summons on the Superior Court of California website:

Service by Mail

In "service by mail," someone – NOT a party to the case – must mail the documents to the other party.

For “service by mail”:

The server mails the papers to the party being served. If the party being served is a person, the papers can be mailed to his or her home or mailing address. If it is a business, the papers must be mailed to the owner(s) at the business’s main office. If the business has an agent for service, the papers should be mailed to the agent for service. Learn more about serving a business.

The server then fills out a Proof of Service, detailing to whom the papers were mailed, to what address, when, how (by first-class mail), and where they were mailed from. The server signs the Proof of Service and returns it to you to file in court.

Service by mail is complete 5 days after the papers are mailed. ( SO, I HAVE 5 DAYS AFTER POST MARK?)

Mail service is easy but not very reliable because the court cannot know for sure that someone received the paperwork.

So, does this mean that they do not have to personally serve the summons? There was no Declaration of Due Diligence filed either.

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According to 415.30:

A summons may be served by mail if it is sent by first class mail and includes two copies of of the notice and acknowledgment provided in subdivision ( b ) with a postage paid return envelope addressed to the sender.

They would have had to include a very specifically written notice and acknowledgment for you to sign saying you received the summons and it had to include an envelope that was preaddressed and stamped for you to return the acknowledgment. If these steps were not taken, you were not served correctly.

If they didn't receive your acknowledgment, they were required to serve you in another manner. They don't get to try to hold you to requirements and then not be held to them as well. Don't let them get away with this!

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Here is subsection b and the required wording for the form they had to send you based on their choice of service of process:

(Title of court and cause, with action number, to be inserted by the sender prior to mailing)

NOTICE

To:(Here state the name of the person to be served.)

This summons is served pursuant to Section 415.30 of the California Code of Civil Procedure. Failure to complete this form and return it to the sender within 20 days may subject you (or the party on whose behalf you are being served) to liability for the payment of any expenses incurred in serving a summons upon you in any other manner permitted by law. If you are served on behalf of a corporation, unincorporated association (including a partnership), or other entity, this form must be signed in the name of such entity by you or by a person authorized to receive service of process on behalf of such entity. In all other cases, this form must be signed by you personally or by a person authorized by you to acknowledge receipt of summons. Section 415.30 provides that this summons is deemed served on the date of execution of an acknowledgment of receipt of summons.

_____________________

Signature of sender

ACKNOWLEDGMENT OF RECEIPT OF SUMMONS

This acknowledges receipt on (insert date) of a copy of the summons and of the complaint at (insert address).

Date: ______________________

(Date this acknowledgement

is executed)

_________________________

Signature of person acknowledging

receipt, with title if acknowledgment

is made on behalf of another person

©Service of a summons pursuant to this section is deemed complete on the date a written acknowledgement of receipt of summons is executed, if such acknowledgement thereafter is returned to the sender.

(d)If the person to whom a copy of the summons and of the complaint are mailed pursuant to this section fails to complete and return the acknowledgement form set forth in subdivision (B) within 20 days from the date of such mailing, the party to whom the summons was mailed shall be liable for reasonable expenses thereafter incurred in serving or attempting to serve the party by another method permitted by this chapter, and, except for good cause shown, the court in which the action is pending, upon motion, with or without notice, shall award the party such expenses whether or not he is otherwise entitled to recover his costs in the action.

(e)A notice or acknowledgment of receipt in form approved by the Judicial Council is deemed to comply with this section.

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Wait a minute folks, trial is friday? Or is this just a case management hearing? If so why are they communicating with you and not your attorney? anyway read astmedics trial brief if it is not the same as your attorneys let us know.

I wondered the exact same thing Seadragon. It doesn't make any sense at all, unless LRLO has completely lost their minds!

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Trial is Friday, yes indeed. Already had 2 case management hearings last year; second one is when my atty showed and asked to set a date for trial. I wonder if astmedic and i have the same attorney?

Seadragon, I got the attorney 2 weeks after receiving the summons. Plaintiff atty is talking to my atty.

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I'm confused... I thought you were implying that astmedic had an atty too, that's why ours looked similar. Anyways, I can't read it because it said its a google doc (drive). How do I get access to it? Should I message astmedic? Thanks for all your help.

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Ok, so I spoke with my atty today.  He said, "so, this is a small amount" (which is almost always what he starts with).  He said that we subpoenaed the witness and she is not going to show up.  She usually has 20 or more cases a day and lives in VA.  I mentioned the 585 documents or whatever those docs were on the court website. He said that they may be referring to ccp 585 subsection d, which states that the court may permit the use of affidavits in lieu of personal testimony in a default judgement case.  He said, this doesn't make sense.  Then he explained how these law firms work:  They have all these paralegals working for them that file the same documents for each case regardless of what has been submitted by the defendant. Usually, if they see that the defendant is represented by an attorney, they pretty much know that they don't have a case and won't show up for trial.  If the defendant is representing themselves, they will go to court in hopes that they'll get a settlement out of it (unless they have their ducks in a row and can prove there is no case).

 

So, as it stands, I'm already $1560 deep in this; Cap1 is suing for $2200 plus interest.  I will owe the atty an additional $200 (for the trial) and he gets a $230 reward if he is successful.  So, he tells me that we should offer $430 to settle the case and I'll be no worse off, and I won't have to drive 120 miles to the courthouse and go through the rigameroll.  This is where we are at this point. Now it's just a waiting game to see if they accept the offer.

 

I also looked at ccp 415.30, which I believe Hotwheels96 mentioned. It may just be irrelevant insofar as they are very confused if they are still trying to get a default judgement.  My feelings about that is if they are nitpicking about the timeliness of my answer, then they should have used a better method of serving a summons! With no acknowledgement and no proof of personal service, why should they even care?

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