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kattorney
kattorney, Attorney
Category: Business Law
Satisfied Customers: 1142
Experience:  16 years experience with a concentration in business, corporate and contracts law
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Case- We are a California Licensed General Contractor (Defendant) Plantiff

Customer Question

Case- We are a California Licensed General Contractor (Defendant)
Plantiff claiming Breach of Contract

1) On 5/1/12 a Request For Entry Of Default application was filed.
2) On 7/26/12 a Request For Dismissal of the same case was filed.
3) We were never served a summons and complaint or given 30 days to respond.
4) Copies of both of the items above were received by our office on 8/1/12 via regular mail.
Question- Please expalin exactly what this means?
-Do we need to respond or was this case disamissed?
-Should we expect further legal action?
-If so, whta must we do to protect any future assets and our license?

-We did try every effort to resolve this issue with the Plantiff.
They were not willing to work with us.

Please advise.

Thanks,

Pilar Wilson
Submitted: 2 years ago.
Category: Business Law
Expert:  kattorney replied 2 years ago.

Kathie Russell :

Very strange, because you should have been served the original complaint by process server or certified mail. Without knowing for sure if the motion for entry of default was granted (if it was there will be an order granting it), I'm guessing it was not. For some reason then (perhaps because no service was achieved? not sure) they decided to dismiss the case. Can you tell me if the dismissal was with prejudice or without prejudice?

Kathie Russell :

At any rate - the motion for entry of default means they served a complaint, you never answered, and so they ask for a default judgment. If one was granted, you'd have to move to overturn it for lack of service (should be successful). However again, my guess is that it was not granted.

Kathie Russell :

Request for dismissal means for some reason they decided to dismiss. This assumes you are the only defendant, and both of these motions were filed by the plaintiff? If the motion to dismiss was filed by another defendant, it means something very different for you, so that's an important distinction.

Kathie Russell :

If the plaintiff filed the motion to dismiss, and it was with prejudice, it means the plaintiff cannot re-file the complaint against you. If the dismissal was without prejudice, they could re-file the same case against you within one year.

Kathie Russell :

If another defendant filed the motion to dismiss, then you are unprotected and need to file your own motion to overturn default/motion to dismiss.

Kathie Russell :

You should check the court file to see if either of these motions were granted, and read the motion to dismiss to see who filed it. If it was the plaintiff you should be fine and just check to see if it's with or without prejudice so you know if you should perhaps expect to receive another complaint.

Kathie Russell :

Possible reasons they may have dismissed are that they didn't get you served on time and the summons expired.

Kathie Russell :

Please let me know if you need more information, or have anything else about this information to share.

Customer:
Customer:

Kathie-


 

Customer:

Thanks for the efficient reply.


1) The dismissal was marked without prejudice

Customer:

Kathie-


 

Kathie Russell :

Hi, are you there? All that came through is my name.

Customer:

Kathie-


Thanks for the efficient reply.

Kathie Russell :

Oh, you are very welcome.

Customer:
kattorney, Attorney
Category: Business Law
Satisfied Customers: 1142
Experience: 16 years experience with a concentration in business, corporate and contracts law
kattorney and 7 other Business Law Specialists are ready to help you
Customer: replied 2 years ago.

To: XXXXX XXXXX Only Please-


 


Hi Kathie-


 


Re the same matter above, the original Motion To Dismiss docs were marked without prejudice.


On 8/21, we received via regular US mail a


Case Management Statement for the same case# XXXXX
Unlimited Case" (amount exceeds $25,000.)


A Case Management Conference is scheduled on Sept 4, 2012 @ 8:45am Dept C22 Orange County Sup Court Santa Ana, CA


Notice of Intent To Appear by Telephone by Plaintiff's Attorney.


 


Further reads-


1. Service (to be answered by plaintiffs & cross-complainants only)


that the parties named in this complaint have a default entered against them (Our Company).


2. Trial date- Marked- No trial date has been set, N/A On July 9, 2012 default was entered against (our Company)


3. ADR package was provided as a mandated.


 


4. Other Issues- States On Jul 26, 2012 Plaintiff applied to court for default judgment to be entered.


The application was made for the court to proceed with the entry of default in lieu of live testimony to expedite the judgment and save judicial and the Plaintiff legal costs.


 


My Questions-


1. What does All this mean??


2. Do we need to seek local legal counsel at this late date or is this a "done deal"?


3. Is there anything we need to do before the Case Management Conference call on Sept 4th @ 8:45am?


4. Re ADR- We initially wrote letters and contacted the Plaintiff CEO, appropriate management and the Plaintiff's attorney requesting options to settle this issue PRIOR to the legal escalation, however they were not willing to work with us.


Q- Is there anything we need to do with the ADR form?


 


5. We are a small business and have been severely impacted by this issue financially.


Q. What can we do to protect the business, specifically our General Contractor's license now and for future income because of this judgment??


 


Thanks for your assistance..


 


Pilar


 

Expert:  kattorney replied 2 years ago.

This COULD just be an administrative court setting. The court sets a schedule for cases that are still on its docket and it's sometimes possible that they could have missed the filing of the dismissal.

Normally I would just suggest that you call the court and tell them the case has been dismissed, upon which they would check the file and close it out. However, since you have a setting on Sept. 4, you will not have time to do that.

So, my advice would be to show up on Sept. 4 at 8:45 with a copy of the dismissal in hand. Show it to whomever is presiding, and tell them your case has been dismissed and there have been no further filings to your knowledge (and if there have been, you have not been served).

If there is something unexpected, such as the case has been re-filed, then tell them you have not been served. They will grant a continuance until the plaintiff can serve you.

However, my best guess is that this is simply an administrative oversight, and once you present the copy of the dismissal the case will be closed.

 

Can you look at your dismissal and copy the text of it here, telling me who filed it and who was asking that the case be dismissed? Was there also an order dismissing the case?

Customer: replied 2 years ago.

Request For Dismissal- Marked OTHER- Breach of Contract


Case#30-2012-00566004


Dismiss without Prejudice, Complaint


 


Filed by- Attorney for Plaintiff- Brian R. Bauer (SBN 238368)


Allen Matkins Leck Gamble Mallory & Natsis LLLP


XXXXX 5th Flr Irvine, CA 92614
(NNN) NNN-NNNN/p>

 


Attorney Brian Bauer signed the Request for Dismissal on 7/26/12


 


I did NOT receive a separate order dismissing the case just the Case Management Statement.


 


Thanks,


 


Pilar


CW Building & Remodeling Inc.


(NNN) NNN-NNNN/p>
Expert:  kattorney replied 2 years ago.

Is that all it says - it does not specify to whom they are asking to dismiss? Were you the only defendant? I noticed above you mentioned cross claimants, are there any other parties other than you and the plaintiff?

 

And also, can you tell if the motion was filed - is there a stamp from the court on it?

Customer: replied 2 years ago.

Request made to the Superior Court Of Calif, County of Orange


700 Civic Ctr Dr West Santa Ana, CA 92701


on behalf of the Plaintiff/Petitioner- Enterprise Rent A Car Co of Los Angeles (Our client of 5yrs)


 



Defendant/Respondent- CW Building & Remodeling Inc. et al.


(our Company)


*We are the only defendant named.


We are the only parties listed.


 


There is NO Stamp on my copy of the Request For Dismissal nor any other paperwork.


 


Thanks,


Pilar


 

Expert:  kattorney replied 2 years ago.
OK. So the dismissal was definitely as to you, but we cannot tell for sure that it was filed. (If it was not filed, you could actually take the copy they sent to you and file it). Given your time frame, all you can do is show up on Tuesday and take the motion and show it to the court and tell them to your knowledge, the case has been dismissed.

If it somehow turns out that the case has not been dismissed, tell the judge that you have not been served with the original complaint, and ask for an extension of time so that you can file to have the default judgment overturned.

My guess is that you will get the dismissal - but that's just a guess since I only have a piece of the whole picture. I hope that is how it works out for you. If it is otherwise, contact me again and we'll figure out the next step.
Customer: replied 2 years ago.

Kathie-


Ok. I'll appear in Court on Monday 9/4 and get back with you re results.


Thanks again for your help.


 


*Enjoy the weekend..


 


Pilar


CW Building


 

Expert:  kattorney replied 2 years ago.
Thanks....you too.
Customer: replied 2 years ago.

Hi Kathie-


Re the above, I did go to court yesterday 9/4, it was a very fast procedure all Case Managements.


 


Results-


1. The judge stated because we were a Corporation, we must be represented by an attorney.


2. The Plaintiff's attorney was on the call.


3. I stated as you suggested, that "to my knowledge the case was dismissed" and asked for an extension to seek legal counsel.


4. Judge asked the Plaintiff's attorney re the dismissal-


He stated that the case was dismissed as to "DOES 1 to 25" as marked on the Request For Dismissal and that his reason for the request was to go to Case Management.


5. The judge would NOT extend but set a date of Oct 31st for the Motion to Request Entry of Default to be granted. No court appearance is necessary.


The judge did state I can still seek legal counsel but doesn't know if it would help at this point.


-I would appreciate your legal suggestions moving forward in protecting our CA GC license and any (future assets) which is our livlihood.


-Is there anything else we could do at this point?


-If not, what should we expect from this judgement?


 


-*Although I haven't found it, the original complaint was accepted by our office.


 


Thanks again for your help.


 


Pilar

Expert:  kattorney replied 2 years ago.
I would advise that you consult an attorney right away. After you do that, if they tell you it is too late and they are unable to help you, send me a new question (to kattorney only) and we can discuss asset protection. You need to talk to the attorney asap and tell them you need straight advice as to whether or not it's even worth your time to try to overturn or avoid the default at this point. If it is, then we can discuss how you might think about protecting your assets, and your contractor's license. If it's not too late, then it will be worth paying an attorney to get the default overturned and perhaps be able to settle the case.
Customer: replied 2 years ago.

Will do.


Thanks,


 


Pilar

Customer: replied 2 years ago.

Kathie-

 

Are you able to handle this case on our behalf here in California?

 

Pilar

Customer: replied 2 years ago.

Kathie-


 


Are you able to handle this case on our behalf (here in California) as suggested above, to get the default overturned and try to settle the case?


 


Pilar

Expert:  kattorney replied 2 years ago.
Hi Pilar, I am not licensed in CA and even if I was, the terms of my employment with this site prohibit me from representing any customers as clients. If you need a referral site to good local attorneys, I'll be happy to provide that. Please let me know how it goes.

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