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Ray
Ray, Lawyer
Category: Legal
Satisfied Customers: 38385
Experience:  30 years in civil, probate, real estate, elder law
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Proof of Service filed but Clerk would not sign off on

Customer Question

Proof of Service filed but Clerk would not sign off on default judgement giving reason that proof of service not filed.
Could you look at the Proof of Service and Summons ant tell me what's wrong.
Submitted: 1 year ago.
Category: Legal
Expert:  Ray replied 1 year ago.

Hi and welcome to JA. I am Ray and will be the expert helping you tonight.Can you post it here so I may review it and help you, thanks

Customer: replied 1 year ago.
You can see by looking up case #***** ai xxx xxxxx County Online
Customer: replied 1 year ago.
Can you do this
Expert:  Ray replied 1 year ago.

I am sorry I could not locate it, I got xxxxxx come up, again can you paste it here be happy to help you.

Customer: replied 1 year ago.
Case #*****
Customer: replied 1 year ago.
You can also look up case by doing a search on xxxxxxx
Expert:  Ray replied 1 year ago.

Ok so here is the case..

Case xxxxxxxxx - Complaints/Parties

According to the docket sheet this is whats is missing.

http://www.courts.ca.gov/documents/pos040.pdf

Did you submit this form here, this is what they claim you were lacking.

Customer: replied 1 year ago.
But I filed the proof of service, do you see.
Expert:  Ray replied 1 year ago.

The step by step are on page 3 here..

http://www.courts.ca.gov/documents/pos040.pdf

This should allow you to complete it here.This is the proof that you served the defendant properly and that you swear you did so.

Customer: replied 1 year ago.
It is the one with xxxx xxxxx as the register agent for xxx xxx xxxxx xxx
Expert:  Ray replied 1 year ago.

So here is what there is..

REQUEST FOR DEFAULT FILED AND DEFAULT NOT ENTERED. REASON: AS TO xxxxx xxxxxx AND xxxx xxxxx - xxxxxxxxFILED 11/30/15.

5 REQUEST FOR DEFAULT FILED AND DEFAULT NOT ENTERED. REASON: AS TO xxx-xxx xxxxx xxx - PROOF OF SERVICE OF SUMMONS/COMPLAINT HAS NOT BEEN FILED.

So proof of service or so it appears is missing as to this person.

Also they filed a demurer here and it is set for hearing.

01/14/2016 9:00 AM DEPT. LM HEARING: xxxxxxxxTO COMPLAINT FILED 10/22/2015 OF xxxxxx xxxxxxx BY xxxxx xxxxxx, xxxx xxxxx

So even if you file the missing form the court may have hearing on their demurer.

Expert:  Ray replied 1 year ago.

REQUEST FOR DEFAULT FILED AND DEFAULT NOT ENTERED. REASON: AS TO xxxxx xxxxxx AND xxxx xxxxx - xxxxxxxx FILED 11/30/15. -

12/01/2015 REQUEST FOR DEFAULT FILED AND DEFAULT NOT ENTERED. REASON: AS TO xxx-xxx xxxxx xxx - PROOF OF SERVICE OF SUMMONS/COMPLAINT HAS NOT BEEN FILED.

Again as I read it the proof of service is missing but they filed a demurer and the court set it for hearing here.You should file this again but default is not going to be granted if they set a hearing on it.

Thanks again and good luck here with all.

Customer: replied 1 year ago.
Do not worry about the demurrer. Please look at the Proof of Service I filed and why the clerk rejected the default as to xxx xxx because Proof of Service not filed.
Customer: replied 1 year ago.
The Proof of Service was filed. What I need from you is to look at it and tell me why the Clerk is saying that it was not filed.
Customer: replied 1 year ago.
Are you still there?
Expert:  Ray replied 1 year ago.

Yes I am trying to review your proof.

Customer: replied 1 year ago.
k
Expert:  Ray replied 1 year ago.

I think this is bad information in the docket sheet I think the demurer is the reason that default was not entered.

Expert:  Ray replied 1 year ago.

Here if the demurer is granted you have to amend , if it is not the court may yet grant default.I cannot see any defect here in your proof of claim, you may have to verify with the clerk as to whether something is missing.It all looks fine to me here.It is very possible this was date entry error by the clerk, the docket sheets aren't always 100% accurate,

Expert:  Ray replied 1 year ago.

You are very likely going to have to amend your complaint here, they raise a valid point you have to claim whether there was a written contract or it was an oral agreement.Each has specific elements and statute of limitations.

Expert:  Ray replied 1 year ago.
  • Breach of a written contract: Four years from the date the contract was broken.
  • Breach of an oral contract: Two years from the date the contract was broken.
Customer: replied 1 year ago.
I do not this so because if you look above under partys. It shows that "Serve Required (WaitS)" for xxx xxx
Complaint Number: 0001 — COM COMPLAINT of xxxxxx xxxxx xxxxxxx
Original Filing Date: 10/22/2015
Complaint Status: ACTIVE
Party Number Party Type Party Name Attorney Party Status
1 PLAINTIFF xxxxxx xxxxx xxxxxxx Pro Per Fees Waived
2 DEFENDANT xxx xxx xxxxx xxx Unrepresented Serve Required (WaitS)
3 DEFENDANT xxxxx xxxxxx xxxxxx xxxx x Demurr 11/30/2015
4 DEFENDANT xxxx xxxxx xxxxxx xxxx x Demurr 11/30/2015
Customer: replied 1 year ago.
Please do not worry about other stuff. I know how to amend the complaint.
Expert:  Ray replied 1 year ago.

I can only give you my impression here and that is that a default was not granted because a demurer was received and a hearing on it scheduled here. They appear to raise a valid issue here and you can amend , the issue would be then whether your claim is timely 2 years or 4 years. I do not see any problems with the documents you filed.The clerk has the final say you are going to have to contact the clerk of the court and ask here.IT may not be the real issue since they show filed and honestly they look like they are filled out correctly.

Customer: replied 1 year ago.
I noticed on the Proof of Service it showed xxx xxx xxx but summons and complaint shows xxx xxx xxx. (without the period) could this be the reason?
Customer: replied 1 year ago.
I sorry
I noticed on the Proof of Service it showed xxx xxx xxx (without the period) could this but summons and complaint shows xxx xxx xxx. ( with a period) Could this be the reason?
Expert:  Ray replied 1 year ago.
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Monday - Friday 10:00 a.m. to 2:00 p.m.

I don't think so because you served the correct agent.If that i8s it they are being super picky.Try to be nice to these guys, I understand they treat pro se folks like dirt sometimes but please call them tomorrow and just ask if they can tell you what they claims is deficient, if it is the period then you can resubmit it pretty easy.

Customer: replied 1 year ago.
If they say no, is there a procedure to motion a hearing on the matter?
Expert:  Ray replied 1 year ago.

If there is no defect here then you would just appear at hearing on demurer.If judge denies their demurer you would be eligible for default.Since they have not filed an answer I think they are real likely to prevail and force you to amend to go forward here.You might as well start working on that in the interim here.You have a good suit here, I am impressed you got the filing fees waived.Lawyer here is just papering you to death and its part of dragging things out.

Keep your chin up , check with clerk, work on amending your petition here assuming they are going to have it granted.

Expert:  Ray replied 1 year ago.

Thanks again for the chance to chat here.

Customer: replied 1 year ago.
Are you there?
Customer: replied 1 year ago.
My sister said that the proof of service on xxx-xxx is not valid because although the proof of service was served on the correct registered agent. It was not served at the agent's place of business per the secretary of state. Is she right?