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  1. #1
    Crazyhorse is offline Member
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    Wrongfully Sued: Plaintiff Counsel Knows I am the Wrong Person

    CALIFORNIA:

    I have been served with a summons on a lawsuit I have nothing to do with. Apparently someone else with my name has allegedly been involved in real estate fraud with companies and individuals that I have never heard of in my life.

    I spoke with Plaintiff's counsel after a subservice of a second amended complaint was made on a co-worker. Plaintiff counsel assured me he would "do nothing further" with respect to me. A week later I get the second amended complaint in the mail (sub serve complete). A week after that, jerkoff files the Proof of Service with the court and I believe he is trying to take a default against me.

    I have spoken with him numerous times and demanded to see any evidence, documentary or otherwise, that proves that *I* am the correct person to be sued. Jerkoff has ignored these requests other than to say that I am welcome to sue him for malicious prosecution if I would like, but that he would SLAPP my lawsuit.

    At this point, jerkoff KNOWS that I am not the named defendant and I have sent him documentary evidence proving this. At this point I do not know if I am a victim of identity theft and if someone is using my name to conduct real estate fraud. If this is the case I need to contact the FBI or other appropriate law enforcement entity.

    I am thinking of a Motion to Quash... but for the most part this is based on a defect in service or lack of jurisdiction, personal or otherwise, not the fact that I'M THE WRONG PERSON. Plus I would like to avoid paying the $320 [special] appearance fee and the $40 motion fee for Los Angeles Superior Court.

    I'm at a loss here... any advice?

    Thanks in advance!
  2. #2
    Zigner is offline Senior Member
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    There are procedures to follow in order to see their evidence. You have not followed them. You should look in to hiring an attorney. If the error is as egregious as you claim, you might even get your attorney fees reimbursed by the opposing party.
  3. #3
    Texas Pooh is offline Member
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    OP is in danger of making the classic mistake: thinking that a legitimate defense means that you don't have to participate in the process and follow the rules.

    You must file an answer to the lawsuit, stating as a defense that they have sued the wrong person. If you do not, you may forfeit that defense forever and a default will be entered. There is a procedural motion to file on this issue; you should consult with a lawyer to ensure it is done properly.

    As Zinger suggests, you might have the basis of a counter-claim, but it depends on the facts.
  4. #4
    Crazyhorse is offline Member
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    Quote Originally Posted by Texas Pooh View Post
    OP is in danger of making the classic mistake: thinking that a legitimate defense means that you don't have to participate in the process and follow the rules.

    You must file an answer to the lawsuit, stating as a defense that they have sued the wrong person. If you do not, you may forfeit that defense forever and a default will be entered. There is a procedural motion to file on this issue; you should consult with a lawyer to ensure it is done properly.

    As Zinger suggests, you might have the basis of a counter-claim, but it depends on the facts.
    What are you talking about I "don't have to participate in the process and follow the rules"?

    Did I not state that I would be specially appearing along with a Motion to Quash/Strike?

    Also, how will I counter-claim when I am not party to the original action? I would have to file a seperate action for malicious prosecution and then they will stay the action and file the SLAPP and we will have to SLAPP back and say that although this is conduct arising out of litigation, it is not protected speech due to counsels failure to engage in "reasonable inquiry" (operative language) as to my identity relative to his named defendant.
  5. #5
    Crazyhorse is offline Member
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    Quote Originally Posted by Zigner View Post
    There are procedures to follow in order to see their evidence. You have not followed them. You should look in to hiring an attorney. If the error is as egregious as you claim, you might even get your attorney fees reimbursed by the opposing party.
    What are you talking about I haven't followed the "procedures" to see their evidence? I have made repeated writen demands? Are you thinking of some type of discovery that I would propound on the Plaintiff even though I will be seeking to Quash/Strike service? What basis do you have to say I have not followed "procedures"?

    My question what was the appropriate motion to file, Motion to Quash or Motion to Strike. I think filing an answer would be idiotic given these facts.

    I have nearly completed the Motion to Quash but now I am having second thoughts and maybe this should be a Motion to Strike. And yes I would be seeking sanctions pursuant to CCP 128.7(d).

    Fortunately this is all irrelevant as douchebag has filed today a "DECLARATION OF JERKOFF REGARDING MISTAKEN SERVICE AND REQUEST TO WITHDRAW PROOF OF SERVICE AS TO CRAZYHORSE".

    Anyways if anyone is reading this later here is the relevant law:

    "reasonable inquiry" and "credible evidence standard" with respect to service on a named defendant:
    California Architectural Building Products, Inc. v. Fransciscan Ceramics, Inc. (9th Cir. 1987) 818 F2d 1466, 1472

    review of records and witnesses:
    King v. Idaho Funeral Services Association (9th Cir. 1988) 862 F2d 744, 747; Wold v. Minderals Engineering Co. (D CO 1983) 575 F.Supp. 166, 167

    sanctions for serving the wrong person with the same name but no other evidentiary ties:
    Callahan v. Schoppe (5th Cir. 1989) 864 F2d 44

    I have a whole bunch of other research on an anti-SLAPP but I've done those before and frankly I get nauseous even thinking about it.
  6. #6
    Rexlan is offline Senior Member
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    Well there you have it ... you have the answers so you actually don't need anything further from here.

    Good luck
  7. #7
    tranquility is offline Senior Member
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    Have you answered yet?

    Info edit:
    sanctions for serving the wrong person with the same name but no other evidentiary ties:
    Callahan v. Schoppe (5th Cir. 1989) 864 F2d 44
    I spoke with Plaintiff's counsel after a subservice of a second amended complaint was made on a co-worker.
    You have a co-worker who is involved with real estate fraud against the plaintiff by a person with the same name as you? I'm thinking that is an "evidentiary tie".
    Last edited by tranquility; 04-17-2008 at 05:17 PM.
  8. #8
    Zigner is offline Senior Member
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    Quote Originally Posted by Crazyhorse View Post
    What are you talking about I haven't followed the "procedures" to see their evidence? I have made repeated writen demands?
    That's NOT what you said in your first post:

    I have spoken with him numerous times and demanded to see any evidence, documentary or otherwise, that proves that *I* am the correct person to be sued.
  9. #9
    Texas Pooh is offline Member
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    Did I not state that I would be specially appearing along with a Motion to Quash/Strike?

    Yes, you did. Specifically, you said you were thinking of a "motion to quash", which is not an answer. You also mentioned you were thinking of a special appearance, which is also not an answer. Both of those are the wrong procedural steps, not that you're going to believe me.

    But it sounds like your problem is solved, regardless.
  10. #10
    Crazyhorse is offline Member
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    Quote Originally Posted by tranquility View Post
    You have a co-worker who is involved with real estate fraud against the plaintiff by a person with the same name as you? I'm thinking that is an "evidentiary tie".
    Allow me to clarify, they subserved me THROUGH my co-worker... IE I wasn't there and they gave it to my co-worker... lied about having come three times to serve me unsuccessfully... then mailed me a copy of the SAC... which consitutes proper service in CA.

    Nobody I know has anything to do with my case.

    Let's say my name is Pinky Pumpkinhead... some guy named Pinky Pumpkinhead ALLEGEDLY ripped off some old lady so... [JUST LIKE THE CASE-ON-POINT] looked up Pumkinhead in the phonebook and served me and came to my office making a big dramatic enterance and engaging in a Gestapo-like interrogation of my co-workers who immediately thought... "wow Pinky seemed like such a nice guy... but a real estate fraudster... how gauche!"
  11. #11
    Crazyhorse is offline Member
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    Quote Originally Posted by Texas Pooh View Post
    Did I not state that I would be specially appearing along with a Motion to Quash/Strike?

    Yes, you did. Specifically, you said you were thinking of a "motion to quash", which is not an answer. You also mentioned you were thinking of a special appearance, which is also not an answer. Both of those are the wrong procedural steps, not that you're going to believe me.

    But it sounds like your problem is solved, regardless.
    With all due respect, why would I answer when I am the actual Defendant identified in the complaint? Doing so would be a tacit admission that I was the named Defendant.

    Besides, I doubt I would even be ABLE to answer given the fact that I am not the named Defendant.

    Anyways I think the Motion to Quash/Strike would have been the way to go.

    Thanks for the input.

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