Proof of Service

[Mellie2019]

What is the name of your state? Ca

What constitutes improper proof of service? We had the sheriff serve a summons. They performed a substitute service to a tenant on the same property but listed the title of the person roommate. The service was followed by a mailed copied. The Commissioner claimed it was not a proper service because the title was roommate and the person was actually a tenant. Although the mailing address for the defendant is the same as the tenant. She rents a studio granny house above the garage. Furthermore, we had a signed statement from the tenant stating that she gave the summons to the defendant. The defendant lied to the court, "I never received anything."

Is there anyway to fight the ruling based on the persons title being incorrect?

 

[BL]

What is the name of your state? Ca

What constitutes improper proof of service? We had the sheriff serve a summons. They performed a substitute service to a tenant on the same property but listed the title of the person roommate. The service was followed by a mailed copied. The Commissioner claimed it was not a proper service because the title was roommate and the person was actually a tenant. Although the mailing address for the defendant is the same as the tenant. She rents a studio granny house above the garage. Furthermore, we had a signed statement from the tenant stating that she gave the summons to the defendant. The defendant lied to the court, "I never received anything."

Is there anyway to fight the ruling based on the persons title being incorrect?

Was the case dismissed with or without prejudice ?

If without refile , and have it done right .

 

[dcatz]

While your post is a bit confusing, if the bench officer found that service was defective, don’t bother trying to fight that battle. They don’t do these things to annoy you, Proof would have been scrutinized by others before the bench officer, and the very high probability is that you’ll lose.
If service was ruled defective, the hearing was continued for you to re-serve. Do that and, this time, use a professional process server. If you prevail, the costs of service will be included in your judgment.
If your defendant resides with another party and you think there is even a possibility that substituted service will again be required, tell your process server. Give them a physical description of the party to be served, if possible, and tell them that, if they have to serve the tenant, to identify service as having been made on the “co-occupant” or “co-tenant”. Once personal delivery has been made and the subsequent mailing done, sub-service is perfected, regardless of whether the defendant says the claim was not presented to her.
It’s just a guess, but it sounds like you might have run into problems because of the way that you designated the defendant in the first place. Review your claim and eliminate any unnecessary descriptors that might cause a repeat of your problem. If she lives there and that’s her mailing address, she is at least a co-occupant, even if her name isn’t on the lease as “tenant”.
I’d be very surprised if the case was dismissed, rather than continued but, if it was, then follow BL’s advice and mine.

 

[Mellie2019]

Won by default

On the original hearing date, the defendant did not show. It was for return of security deposit and bad faith, which we were awarded. He then filed an oder to vacate and because the proof of service stated that the person served was his roommate and not tenant on the same property, he was awarded the motion to vacate.

The first bench officer saw the same proof of service and stated that because it was served at his address, it was OK.

Now that the motion to vacate was awarded and we were there at the time, the case was reheard and the judge took away the bad faith award. Claiming that although the defendant gave a statement of "repairs", had no evidence to support the amounts, and the amounts were obviously fictitious to equal the security deposit, he did not act in bad faith.

The defendant lied to the "judge", we proved it and he got away with it.

 

[dcatz]

Well, I'm sorry that you lost, but nobody here heard the case, saw the evidentiary presentation or could guarantee a win.

Your further comments create a different perception of what went on. Unfortunately, courts are strongly disposed to vacate defaults. It reflects a judicial philosophy "favoring a hearing on the merits" - i.e. with all litigants present and able to testify. The grounds used can sometimes be frustrating to the party who originally prevailed by default, but I suspect that predisposition was the higher mountain that you had to climb. Then the case was heard and the Court ruled against you.

 

[Mellie2019]

Still "fighting"

Thanks for the help. I talked to the small claims advisor and received some options to try. One is asking for a change of order to vacate based on case law stating, “that the rules regarding service of process should not be so inflexibly administered so as to defeat substantial justice.”

Another one would be to appeal the judgment to vacate to the higher court.

All rules of process were followed according to civil code, the only mistake was listing the capacity of substitute service as roommate instead of tenant. Plus we have the added evidence that he was given the summons and failed to show to the original hearing. He chose not to show up, not because he was unaware, (as he claimed in court) but because he wanted to try and USE the system to his advantage. Which he has at this point. But we are not giving up!!

I appreciate the advice though. If I didn't feel like I was used, manipulated, screwed and then **** on, I would walk away. (Sorry about the language) But this is just something that I can't walk away from.

 

[dcatz]

It wasn't advice. It was an explanation of why what happened happened. If you think you're ticked, wait 'til it happens 100 times. I empathize with you.

You're the plaintiff, and you don't have the right to appeal (except on a defendant's claim). The adverse ruling was conclusive on you as the plaintiff.

Not sure what the SC advisor said, but I would expect that what you're alluding to is a Motion for Reconsideration (of the original ruling on service). That you can do.

Only two problems: (1) the argument that “that the rules regarding service of process should not be so inflexibly administered so as to defeat substantial justice” is one that should have been made at the hearing on the motion to vacate and (2) the Motion for Reconsideration will be heard by the same bench officer. You're asking him to reverse himself - good luck, we've been over the reason that he did it in the first place. Now, if he affirms his original ruling, you can appeal that, but this is an area that's within the discreation of the bench officer, and it's highly unlikely that it would be reversed on appeal. I think you're going to spend a lot of time and effort finding new reasons to be ticked, but don't let that stop you, if you want to make the effort.

I didn't say it should feel fair, and I could give you a dozen other reasons to add to the argument that you propose to make. Then I'd still give big odds against you. Sorry.

 

[Mellie2019]

Appreciate the honesty

I hear you, understand you and thank you for the explanations.

I guess we'll see what happens. I figure I at least have a chance and I'm willing to take it. All that can happen is be told "no" right? I just can't say, Oh, the "judge" said it is so and walk away when I believe he misjudge the motion. Afterall, the defendant did not see the proof of service... at all. He claimed he was not given the summons, which we proved with a signed statement that he did receive it. He only filed the vacate because he lost. He knew he was ordered to be there in the first place. He hope for the technicality and got it, but that doesn't mean I have to accept the ruling either.

I'll play this out and let you know what happens. Who knows, maybe we'll set a record... Appeal to granting of motion to vacate granted. Won't that be something!!!??? LOL

 

[dcatz]

By all means, report back, and I wish you luck.

I consider it a triumph to successfully oppose 1-2 out of 100 Motions to Vacate. That's how strong that disposition is. And it's always harder to take the ruling, because they're invariably based on a lie. If you go 1 for 1, you'll be a star.