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Barrister
Barrister, Attorney
Category: Legal
Satisfied Customers: 33794
Experience:  15 yrs practice, Civil, Criminal, Domestic, Realtor, Landlord 26 yrs
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I received a small claims form at work, was not aware it was

Customer Question

I received a small claims form at work, was not aware it was even in my file for over 30 days, never was told it was there, then I noticed the date of trial I was going to be in Hawaii on vacation, I wrote the court to change the date, they gave him the judgement, what do I do now?
Submitted: 11 months ago.
Category: Legal
Expert:  Barrister replied 11 months ago.

Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes and ordinances and type out an answer or reply, but rest assured, I am working on your question.

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Did the process server give it to someone at your work who then put it in your mail or inbox?

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And did you file a formal motion with the court for a continuance?

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Or did you send a letter to someone?

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thanks

Barrister

Customer: replied 11 months ago.
I am in real estate, we have a file at office which I very seldom use, it is not something we use all the time, I should have been handed that form, when I called the court the paper they filed said that the man that delivered the notice said he handed it to me, not so, he just left it at the front desk and someone put it in my file. I sent the letter to the court asking for another date since I was on vacation that week, such vacation with the family was planned for 2 years
Customer: replied 11 months ago.
Nothing important ever goes in this file, it is in a cabinet, mostly newspapers, magazines, all offers go to my email, that is why we never look in the file for important papers as this was. I only had a couple of days to respond, because of the delay of finding the court papers.
Expert:  Barrister replied 11 months ago.

Ok, unfortunately this would be considered proper legal service under CA law if the process server delivered it to someone at your work who was over 18 years old with instructions to give it to you. It is called "substitute service" and can be used if the server can't serve you personally after several tries..

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With that said, most of the blame would fall on whoever failed to deliver the summons to you earlier..

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But since you did get notice prior to the actual hearing date, your recourse would have been to immediately file a motion for a continuance, preferably through an attorney, to get it in front of a judge for a ruling. Sending a letter to the court clerk doesn't do any good as they don't have the authority to grant a continuance, only the judge can.

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With that said, your only recourse here is to file a motion to vacate the judgment and argue that the process server didn't serve the summons on someone who was in a position of authority so you didn't have time to properly respond or hire an attorney..

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thanks

Barrister

Customer: replied 11 months ago.
He did not give the small claims form to anyone, he just left it at the front desk, we have people on floor that do not know me or they would have called me to let me know, the secretaries always do that, he told the court he delivered to me in person that is what his paper says that he delivered to court
Expert:  Barrister replied 11 months ago.

Ok, then that would give you further grounds to support your motion to set aside the default judgment against you.. He has to at least give it to a person "in a position of authority" with instructions to give it to you in order to get a good substitute service.

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If he just left it on the front desk, that is definitely not good service and can be fought.

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thanks

Barrister

Customer: replied 11 months ago.
what form do I have to file in order to do this correctly? Fresno County Superior Court sc 130 and sc 135 is that correct?
Expert:  Barrister replied 11 months ago.

You just need to file the SC 135, not the SC 130. The SC 130 is just the notice of entry of judgment telling you that a judgment was entered against you.

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From the CA Courts site:

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How to vacate your judgment

  1. Fill out a Notice of Motion to Vacate Judgment and Declaration (Small Claims) (Form SC-135).

     

  2. File it with the small claims court clerk.

     

  3. Pay the filing fee. If you cannot afford the fee, ask for a fee waiver.

     

  4. The clerk will give you a date for your hearing. At the hearing, the judge will decide whether to cancel the judgment or not.

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thanks

Barrister

Customer: replied 11 months ago.
What evidence do I take to court to show that the small claims was filed improperly, when I looked over the small claims form that I found, it said that if your serving a business you need for sc104, sc 104b or sc104c, he filed sc100, that was wrong , correct? also I noticed that proof of service he says that he delivered the documents to the person in 1c which is me and that did not happen, does that give me enough proof?
Expert:  Barrister replied 11 months ago.

You really don't have any "evidence" to present because you can't prove a negative..(that he didn't serve you properly). You make the allegation in your motion and then the burden shifts to the other side to prove that the service actually was proper.

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you need for sc104, sc 104b or sc104c, he filed sc100, that was wrong , correct?

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Correct. He has to file a proof of service. But he also files the SC 100 stating facts about the case.

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also I noticed that proof of service he says that he delivered the documents to the person in 1c which is me and that did not happen, does that give me enough proof?

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This would then boil down to you claiming that you were never personally served and the process server lying and stating that he did serve you. The judge then decides who he finds more credible and makes a ruling.

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thanks

Barrister

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