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Thread: Proof of service:mispelled name of person served w/ summons +complaint. Fatal error?

  1. #1
    iamHankster is offline Junior Member
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    Proof of service:mispelled name of person served w/ summons +complaint. Fatal error?

    What is the name of your state (only U.S. law)? California

    I am the plaintiff in a tort case. I filed a summons and complaint with the court recently. A few days ago, someone served the defendant with the summons and complaint. Today, I filed the completed proof of service.

    This evening, I was glancing at the proof of service, i.e., Proof of Service of Summons, form pos-010. I noticed that that there was an error in the spelling of the first name of the person served. I refer to where the instructions read, “Party served (specify the name of party as shown on documents served”.

    An extra “a” was inadvertently in the first name. Does this make the service of the summons and complaint invalid?

    Note however that this person was personally served, inside of his apartment. Also, on the proof of service where it says “Defendant/Respondent”, his name is spelled correctly

    I realize that I must bring this to the attention of the court.

    What should I do to correct this?

    Should I ask court clerk to “invalidate” the proof of service that I filed today?

    Should I have someone serve the defendant once again, with all the same documents as before? Then, that person could fill out a new proof of service, which I could subsequently submit.
    Last edited by iamHankster; 04-03-2012 at 12:27 AM. Reason: Grammar
  2. #2
    sandyclaus is offline Senior Member
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    Quote Originally Posted by iamHankster View Post
    What is the name of your state (only U.S. law)? California

    I am the plaintiff in a tort case. I filed a summons and complaint with the court recently. A few days ago, someone served the defendant with the summons and complaint. Today, I filed the completed proof of service.

    This evening, I was glancing at the proof of service, i.e., Proof of Service of Summons, form pos-010. I noticed that that there was an error in the spelling of the first name of the person served. I refer to where the instructions read, “Party served (specify the name of party as shown on documents served”.

    An extra “a” was inadvertently in the first name. Does this make the service of the summons and complaint invalid?

    Note however that this person was personally served, inside of his apartment. Also, on the proof of service where it says “Defendant/Respondent”, his name is spelled correctly

    I realize that I must bring this to the attention of the court.

    What should I do to correct this?

    Should I ask court clerk to “invalidate” the proof of service that I filed today?

    Should I have someone serve the defendant once again, with all the same documents as before? Then, that person could fill out a new proof of service, which I could subsequently submit.
    The court clerk can't "invalidate" proof of service. If there is a significant issue regarding service, a Motion to Quash Service would need to be filed.

    And BTW, a minor misspelling of a name would NOT be considered an issue sufficient enough to invalidate service.
  3. #3
    davidmcbeth3 is offline Senior Member
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    You working for the defendant? Then you need not bring up a simple typo that will not invalidate the service. You have the right name on the complaint?
  4. #4
    iamHankster is offline Junior Member
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    I am not working for the defendant ...

    I am the plaintiff.

    Each instance of the defendant's name is correctly spelled in all other court documents which I submitted.


    I needed to have someone, who was not a party to the case serve the defendant with the summons and complaint.

    Unfortunately, the person who served the papers, inadvertently misspelled the defendant's first name; he added an extra "e".

    This misspelling only occurred once within the proof of service. In other parts of that document, the defendant's name is correctly spelled.

    I don't want to risk having the entire suit thrown out, because I did not exercise due diligence in correcting this situation.

    Currently, I really don't know what to do.

    Of course, tomorrow, I'll ask the court clerk.
    Last edited by iamHankster; 04-03-2012 at 01:01 AM. Reason: Edification
  5. #5
    sandyclaus is offline Senior Member
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    Quote Originally Posted by iamHankster View Post
    I am the plaintiff.

    Each instance of the defendant's name is correctly spelled in all other court documents which I submitted.


    I needed to have someone, who was not a party to the case serve the defendant with the summons and complaint.

    Unfortunately, the person who served the papers, inadvertently misspelled the defendant's first name; he added an extra "e".

    This misspelling only occurred once within the proof of service. In other parts of that document, the defendant's name is correctly spelled.

    I don't want to risk having the entire suit thrown out, because I did not exercise due diligence in correcting this situation.

    Currently, I really don't know what to do.

    Of course, tomorrow, I'll ask the court clerk.
    The court clerk won't likely be able to advise you because they are not allowed to give you legal advice. My own advice comes from experience in similar situations.

    Why invite trouble where there may not be any? Unless the other side files a Motion to Quash Service, you don't have a problem.
  6. #6
    davidmcbeth3 is offline Senior Member
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    Quote Originally Posted by iamHankster View Post
    Unfortunately, the person who served the papers, inadvertently misspelled the defendant's first name; he added an extra "e".
    Big deal .. not grounds to dismiss the case.
  7. #7
    tranquility is offline Senior Member
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    It's not a problem unless it is. If the other side defaults or otherwise objects to service, you should inform the court in your motion to default or answer to the motion. If not, no one is going to notice or care.
  8. #8
    Zigner is offline Senior Member
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    You could avoid ALL problems by having the person who served the document fill out another proof of service.
  9. #9
    Zigner is offline Senior Member
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    The documents that the defendant received were ALL correct. All we're talking about here is the Proof of Service that is filed with the court, right?
  10. #10
    iamHankster is offline Junior Member
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    Recently file Request for Entry of Default, but extra letter in Defendant's POS name

    Quote Originally Posted by sandyclaus View Post
    The court clerk won't likely be able to advise you because they are not allowed to give you legal advice. My own advice comes from experience in similar situations.

    Why invite trouble where there may not be any? Unless the other side files a Motion to Quash Service, you don't have a problem.

    For example, instead of correctly listing the name of “Ann Smith”, the name of “Anne Smith” is written where it asks for “Party served.” Note, that in the Summons, Complaint, and all other court documents, the name “Ann Smith” is properly entered.

    Well, after filing the Request for Entry of Default, I noticed that on Notice of Rejection Default Clerk’s Judgment (LACIV 098), reason # 19 is “The name of defendant on Proof of Service does not match the name of the defendant on the complaint.”

    Below, is an excerpt from my original post:

    Does this make the service of the summons and complaint invalid?

    Note however that this person was personally served, inside of his apartment. Also, on the proof of service where it says “Defendant/Respondent”, his name is spelled correctly

    I realize that I must bring this to the attention of the court.

    What should I do to correct this?

    Should I ask court clerk to “invalidate” the proof of service that I filed today?

    ___

    iamHankster
    Last edited by iamHankster; 05-11-2012 at 08:11 AM.
  11. #11
    Zigner is offline Senior Member
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    It's unfortunate that you didn't follow my advice on 4/3.
  12. #12
    sandyclaus is offline Senior Member
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    Quote Originally Posted by iamHankster View Post
    For example, instead of correctly listing the name of “Ann Smith”, the name of “Anne Smith” is written where it asks for “Party served.” Note, that in the Summons, Complaint, and all other court documents, the name “Ann Smith” is properly entered.

    Well, after filing the Request for Entry of Default, I noticed that on Notice of Rejection Default Clerk’s Judgment (LACIV 098), reason # 19 is “The name of defendant on Proof of Service does not match the name of the defendant on the complaint.”

    Below, is an excerpt from my original post:

    Does this make the service of the summons and complaint invalid?

    Note however that this person was personally served, inside of his apartment. Also, on the proof of service where it says “Defendant/Respondent”, his name is spelled correctly

    I realize that I must bring this to the attention of the court.

    What should I do to correct this?

    Should I ask court clerk to “invalidate” the proof of service that I filed today?

    ___

    iamHankster
    Quote Originally Posted by Zigner View Post
    You could avoid ALL problems by having the person who served the document fill out another proof of service.
    Quote Originally Posted by Zigner View Post
    It's unfortunate that you didn't follow my advice on 4/3.
    You have only yourself to blame that you failed to take the ONE action over a month ago that would have corrected this. After all, it was a simple, easily correctable error - YOUR simple, easily correctable error.
  13. #13
    iamHankster is offline Junior Member
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    I filed Request for Dismissal, but clerk marked it "Received". When can re-file it?

    As I have received conflicting responses, I finally told Default Department clerk not to bother with processing my Request for Entry of Default. I then filed a Request for Dismissal—to play it safe.

    I subsequently re-filed that same action the same day. Later, I realized that the copy of the Request for Dismissal that clerk returned to me was only marked "Received", i.e., not "Filed." I contacted the Department to which the "dismissed" case was assigned. That department clerk told me that the filing department merely receives Request for Dismissal and then forwards it to the proper hearing room, where it is actually processed and then later filed. That hearing room clerk did tell me that once processed, the dismissal date will be as of the date when I first submitted the Request for Dismissal.



    I don't want any conflict with apparently two of the same actions being simultaneously "active" on file for that same Defendant and consequently ultimately invalidating the new filing. So, I decided not to serve the Defendant with this new Summons and Complaint, as I feared that I possibly should first have awaited an actual court processing and filing of my Request for Dismissal.

    Questions:

    1. Is there a problem because I re-filed the action without first having waited until the court actually processed and filed my previously submitted "Request for Dismissal?"

    2. Can I serve the Defendant with the new Summons and Complaint?
    Last edited by iamHankster; 05-15-2012 at 08:20 PM.
  14. #14
    Zigner is offline Senior Member
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    I would suggest that you retain an attorney. You are flubbing this right and left...
  15. #15
    sandyclaus is offline Senior Member
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    Quote Originally Posted by Zigner View Post
    I would suggest that you retain an attorney. You are flubbing this right and left...
    Couldn't agree more.

    Why bother even asking for our advice if you never listen to it? Had you listened to what we said previously, you would have simply had the server fill out an amended proof of service when we suggested it, and your problem would have been solved. Instead, you ignored our advice, and found yourself in exactly the situation you were worried about.

    Now you've gone and filed for dismissal on the original Complaint, filed an entirely new Summons and Complaint, and screwed things all up. You do realize that if you didn't have a Fee Waiver, you ended up paying TWICE for the filing fee. You don't get the original filing fees back. And if you DID have a Fee Waiver, you wasted the taxpayer's money by filing the same action twice. Seems to me a very expensive mistake for being so stubborn.

    Please. If you have the money to shell out for multiple filing fees, do yourself a favor and hire an attorney so that you can get it right this time.

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