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Here are my responses to your specific issues:
FACT: The other parties attorney has sent me letters dated 30 days prior to the postmark, and is claiming to have sent me demand letters (by US mail) that I have never received. (Honestly, I did not get them).
DISCUSSION: Under the Code of Civil Procedure, with respect to service of process, documents with a date on the service of process that is more than one day later than the postmark date are not considered to be validly served. Since letters are not "served" pursuant to the code, this is only meant to be guidance on how the Court construes proper service.
Make sure to keep the letters you receive and the envelopes that they come in, so that if service of process is an issue because you have to do a Motion or otherwise prove to the Court that this attorney is not cooperating, you have proof that he has not been properly using the postal service.
FACTS: He often completes the proof of service himself, but does not sign it.
DISCUSSION: An attorney is allowed under the Code of Civil Procedure to serve documents, but many don't because if there is a problem with the service, the attorney might have to testify about when and where a document was mailed, making the attorney a witness.
Furthermore, although proofs of service are often signed, under the California Rules of Court, the original proof of service is not supposed to be signed because, by the terms of the proof of service, it is a declaration that the person serving the document has completed the service. The original signed proof of service is supposed to be maintained by the person who served the document.
FACTS: I got a voice message from the court last week that I failed to show up for some hearing. I knew nothing about it.
DISCUSSION: If you are in Court in Los Angeles, for most cases, you can keep apprised of what is going on by going to the Court's website at http://www.lasuperiorcourt.org/civilCaseSummary/index.asp?CaseType=Civil and typing in the case number (with BC in front of it). It doesn't cure the problem with service, but it does keep you from being surprise. By the way, they update once a day, very early in the morning.
FACTS: I will call the court on Monday to find out more. How do I handle this behaviour? The original complaint was filed just 10 weeks ago. We have not even had a case management conference yet.
DISCUSSION: One thin that I have done when service is a problem is prepared, filed and served a document on pleading paper that I call "REQUEST THAT DEFENDANT BE SERVED IN ACCORDANCE WITH THE CODE OF CIVIL PROCEDURE." This is not a form; it goes onto pleading paper. The text should read something to the effect of, "Defendant [NAME OF DEFENDANT] hereby respectfully XXXXX XXXXX Plaintiff [NAME OF PLAINTIFF] serve Defendant in accordance with the Code of Civil Procedure at [ADDRESS, CITY, STATE, ZIP, PHONE NUMBER]. Then sign and date the document. Make sure you properly serve the document.
That puts the Court on notice that you are having problems being served by the Plaintiff with documents; and if you end up having to do a Motion, there's a record of the problem.
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