Jump to content

California - 180 Days to Serve - Question


Recommended Posts

A bit of background: 

 

A case was filed last year by an OC and now a 180 days have come...and gone from the date they filed it and they haven't served me yet.  In checking the status of the case on the Court website, today there was finally a change.

 

In the "Clerk's Tickler" entry it states "CHECK FOR PROOF OF SERVICE FILED WITHIN 180 DAYS OF FILING COMPLAINT" and in the disposition column it now says "Vacated".  The "Check for filing of default judgment within 360 days" is blank in the disposition column.

 

I've read that Rule 3.740. Collections states that:

 

(e) Effect of failure to serve within required time

If proofs of service on all defendants are not filed or the plaintiff has not obtained an order for publication of the summons within 180 days after the filing of the complaint, the court may issue an order to show cause why reasonable monetary sanctions should not be imposed. If proofs of service on all defendants are filed or an order for publication of the summons is filed at least 10 court days before the order to show cause hearing, the court must continue the hearing to 360 days after the filing of the complaint.

 

Does "Vacated" in the disposition column mean that the case has been vacated or something entirely different?  Of course, I'm hoping that they gave up before the fight, due to my awesome DV letter, and firing of the arbitration photon torpedo off their starboard bow :-)

Link to comment
Share on other sites

No change to the status of the case, and it's still listed as "Active".  I was doing some random searching online and stumbled across a question asked on Avvo from another California resident.  He framed his question in a similar context.  The Attorneys that responded gave a surprising answer.  They said that often when the Court vacates something, it means that the Plaintiff filed the necessary paperwork on time and therefore the action (hearing) was not needed. I guess this may not apply to me, as the status beside my name says:  Weary Traveler - "Wait Service". :unsure:

 

I've noticed the wheels of Justice doth turn slowly in the Golden State though. Good grief, how long will it take these people to update it? hehe.

Link to comment
Share on other sites

No change to the status of the case, and it's still listed as "Active".  I was doing some random searching online and stumbled across a question asked on Avvo from another California resident.  He framed his question in a similar context.  The Attorneys that responded gave a surprising answer.  They said that often when the Court vacates something, it means that the Plaintiff filed the necessary paperwork on time and therefore the action (hearing) was not needed. I guess this may not apply to me, as the status beside my name says:  Weary Traveler - "Wait Service". :unsure:

 

I've noticed the wheels of Justice doth turn slowly in the Golden State though. Good grief, how long will it take these people to update it? hehe.

 

You mentioned that the case was filed by an OC.  Correct?  Check your local court records to see if they routinely file a bunch of lawsuits that are never served.  Reason:  Well, I'm dealing with a JDB-Unifund-and they tend to file a lot of collection cases in California (not just my county) which seldom if ever get served.  They filed mine a month ago and still no service.  Not dodging them as I know they will just sewer serve me so what's the point. 

 

I did remind them, after learning they had filed, I had elected arbitration six months ago but I doubt that had anything to do with not serving me yet.

I'm wondering if they do this (file and not serve) to toll the SOL to buy more time since mine will pass in July.  When is your SOL set to pass?

 

Anyone know if the SOL is tolled once they file or is it after we are served?  

 

Carol-Lynn

Link to comment
Share on other sites

I would have to look at the whole docket to be sure but here is what I think has happened.

 

The clerk's tickler entry is designed to have Court staff check the docket to see whether a proof of service has been filed.  If not, the Court usually sends an OSC (Order to Show Cause) why plaintiff should not be sanctioned for failure to serve of file the proof. 
 

Somehow, the Court thinks that a proof HAS been filed or there is some other reason why the rule doesn't apply (case has been sent to arbitration?).  It is possible that a clerk made a mistake too.  If you want to PM me the entire docket, I will take a look.

Link to comment
Share on other sites

  • 2 months later...

Well, I checked today...as I've been monitoring this for quite some time (bi-weekly).

 

The case has finally been updated and says:

 

ENTIRE ACTION DISMISSED WITHOUT PREJUDICE     

CIVIL SAD BEFORE TRIAL - REQ. DISM. - NO ADR  

 

Can someone explain what the second line means?  I get "Requested Dismissal", but I don't understand "SAD" before trial or "NO ADR".

 

By the way, with the snap forward of the SOL clock. California's 4 year SOL makes it dead in about a week.

Link to comment
Share on other sites

their settlement must mean they don't want to or have time to fight right now, maybe there is a time limit that a case can be inactive? I dunno.  Did you elect arb? , but if they change their mind, they can refile. Still a win.

 

Hi Shellie, Yes I did indeed elect private contractual arbitration in JAMS during my initial response to their Dunning Letter.  In California, arbitration costs and expenses between a consumer and non-consumer party are not recoverable by the non-consumer party.  So, if they went to JAMS and the final bill for the party was $50,000, they'd have to eat it. 

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.