My response:
I got you these forms and some good arguments to make to the court. This is a California case, but the arguments are valid; just substitute Texas law for the Calfornia law. If nothing else, these forms and the arguments will give you more guidence.
IAAL
[Attorney name] [Address] [Telephone number] Attorney for [e.g., Plaintiff], [name] Court, County of [ District] xxxxxx ) No. Plaintiff(s) ) vs. ) MEMORANDUM OF POINTS AND ) AUTHORITIES OPPOSING xxxxxx ) [NAME]'S MOTION Defendant(s) ) [SPECIFY NATURE OF MOTION] ___________________________) Hearing: [date; time] Department: _ Trial Date: [if set] FACTS: [Set forth facts if not accurately provided by moving party]. I. [State points of law, authorities, and argument]. WHEREFORE, [e.g., plaintiff], [name], respectfully requests that [name]'s motion [specify nature of motion] be denied. Date: Respectfully submitted, ____________________ [Typed name] Attorney for xxxxxx
TO PLAINTIFF'S AND THEIR ATTONEY OF RECORD:
NOTICE IS HEREBY GIVEN that on May 28, 1999, at the hour of 9:30 a.m. or as soon thereafter as the matter may be heard in Department "64" of the Orange County Superior Court located at 700 Civic Center Drive West, Santa Ana, California, 92702, Defendant Lee Madman, Ph.D. will and hereby does move the court for an order setting aside the default entered against her on March 24, 1999, and to allow the filing of her answer and affirmative defenses.
The grounds for this motion are the Defendant did not have notice to defend the action, the entry of default was the result of surprise to Defendant, and Defendant was not served with a statement of damages before the default was entered.
The motion is brought pursuant to Cal.Civ. Proc. Code 473(b) and 473.5, and is supported by the attached memorandum of points and authorities, the declaration of Lee Madman, Ph.D., the declaration of Baljeet Khurana, M.D., the declaration of Jeffrey B. attorney, the records and files herein, and by such other evidence, both oral and documentary as may be offered at the time of the hearing.
Dated : April 22, 1999
_________________________________
MEMORANDUM OF POINTS AND AUTHORITIES
I.
STATEMENT OF THE FACTS
Summons and Complaint were allegedly served on Lee Madman, Ph.D. on January 28, 1999 by an unregistered process server. Defendant Lee Madman, Ph.D. was never served a Summons or Plaintiff's Complaint. Madman Decl...Par. 3. Someone came to Dr. Madman's office during the month of January 1999, but never left any papers or documents. Madman Decl...Par.4, Khurana Decl...Par.4. On or about March 19, 1999 Dr. Madman received a Request for Entry of Default. Madman Decl...Par. 11. On March 19, 1999, Dr. Madman forwarded a copy of the Request for Entry of Default to her insurance carrier. Madman Decl...Par. 11. On March 24, 1999 a default was entered against Defendant Lee Madman, Ph.D., the same day Dr. Madman's carrier assigned the matter to the office of Mark Schreiber-Attorney at Law. Dr. Madman never received a statement of damages from Plaintiff. Madman Decl...Par. 12.
On March 24, 1999 Defendant Madman served her Answer and Affirmative Defenses of Plaintiff. On March 25, 1999 Defendant Madman, Ph.D. attempted to file her Answer and Affirmative Defenses which were rejected by the court for the reason that a default had been entered.
The default entered was a surprise to both Defendant Lee Madman, Ph.D. and her Defense counsel for the reason that Defendant Madman did not know there was a Complaint filed against her.
II.
ARGUMENT
A. THE DEFAULT SHOULD BE SET ASIDE FOR THE REASON THAT DEFENDANT Madman DID NOT HAVE ACTUAL NOTICE OF THE ACTION
CAL.CIV. PROC.CODE 473.5(A) provides : When service of a summons has not resulted in actual notice to a part in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. * * *
Actual notice means genuine knowledge of the party litigant and does not contemplate notice imputed to a principal from an attorney's actual notice. Rosenthal v. Garner (1983) 142 Cal. App. 3d 891, 895. In Olvera v. Olvera (1991) 232 Cal. App. 3d 32, the court stated that any form of substituted or constructive service is on may occasions unlikely to result in actual notice. "Thus, [C.C.P.] section 473.5 reflects the understanding that if any form of service of summons does not result in actual knowledge, fundamental fairness may require that a subsequent default be set aside." Id. at 40.
In Kodiak Films, Inc. v. Jensen (1991) 230 Cal. App. 3d 1260, Plaintiff purported to effect substitute service on a "girlfriend, competent member of household" at an address at which defendant had not lived for several months. The court granted defendant relief to set aside the default for the reason that defendant did not receive actual notice in time to defend the action, brought the motion for relief within a reasonable time, and the lack of notice was not caused by his avoidance of service of inexcusable neglect.
In the case at bar, Dr. Madman was never personally served with the Summons or Complaint, nor did she receive a copy of the Summons or Complaint in the mail. Dr. Madman was told that someone was looking for her at her office, but no one at her office is designated to accept service for her. Dr. Madman's lack of actual notice in time to defend the action was not caused by her avoidance of service or inexcusable neglect. During the end of January and beginning of February 1999, Dr. Madman was ill and out of her office. Dr. Madman regularly sees patients at her Santa Ana office in the atfernoons on Tuesdays and Thursdays. Dr. Madman did not avoid service.
In the case at bar, as in Kodiak Films, Inc. v. Jensen, Plaintiff allegedly purported to effect substitute service on a co-worker, Dr. Baljeet Khurana, at Dr. Madman's Santa Ana office. Dr. Khurana did bot accept any packages or envelopes for Dr. Madman. Khurana Decl...Par.3 Dr. Khurana is not the person in charge of the office nor is she allowed to accept service for Dr. Madman. Khurana Decl...Par.5. No substituted service was effected, and Dr. Madman did not have actual notice in time to defend the action.
Dr. Madman received in the mail on or about March 19, 1999 Plaintiff's request for entry of default. Dr. Madman notified her insurance carrier that day. Dr. Madman did not have actual notice of the action at the time she recieved Plaintiff's request for entry of default. On March 24, 1999, Dr. Madman served her Answer and Affirmative Defenses on Plaintiff. On that same day, Plaintiff had default entered against Dr. Madman.
Since Dr. Madman did not have actual notice in time to defend the action, which was neither caused by avoidance of service nor by inexcusable neglect, the court should set aside the default.
'It is also well established that it is the policy of the law to bring about a trial on the merits whenever posible, so that any doubts which may exist should be resolved in favor of the application, to the end of securing to a litigant his day in court and trial upon the merits'...'Even in a case where the showing under section 473 is not strong, or where there is any doubt as to setting aside of a default, such doubt should be resolved in favor of the application.' Rosenthal v. Garner (1983) 142 Cal. App. 3d 891, 898. ( Italics in original )
Dr. Madman lacked actual notice of the action, and the court should enter an order vacating the default and allowing filing of the Answer and Affirmative Defenses, on such terms as may be just.
B. THE DEFAULT SHOULD BE SET ASIDE AS IT WAS THE RESULT OF SURPRISE TO DR. MADGAN
Cal. Civ. Proc. Code 473(b) provides, inter alia: The court may, upon any terms that may be just, relieve a party or his or her legal representative from judgement, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertance, surprise,
