Proof of service

[shaggin]

What is the name of your state? California My ex filed for an ex-parte hearing to request an attorney for our son, which he requested 8 months ago and the judge denied and to request overnight visitation until the trial in July. The hearing is next week and he has not filed a proof of service. If he doesn't file a proof of service which is unlikely since if they haven't filed it by now they forgot, on the day of the hearing can we object to the hearing going forward? I know we can object to anything but will the usally judge agree for not filing a proof of service, how important is a proof of service, any advice?

 

[seniorjudge]

What is the name of your state? California My ex filed for an ex-parte hearing to request an attorney for our son, which he requested 8 months ago and the judge denied and to request overnight visitation until the trial in July. The hearing is next week and he has not filed a proof of service. If he doesn't file a proof of service which is unlikely since if they haven't filed it by now they forgot, on the day of the hearing can we object to the hearing going forward? I know we can object to anything but will the usally judge agree for not filing a proof of service, how important is a proof of service, any advice?

If he doesn't file a proof of service which is unlikely since if they haven't filed it by now they forgot, on the day of the hearing can we object to the hearing going forward?

You: Judge, I want to object to this hearing going forward because there is no proof of service filed.

Judge: Ummm...you're sitting right there in the courtroom. What is your basis for the objection?

You: There is no proof of service filed.

Judge: Okay, you choose. We can have the hearing continued for three or four months so you and the other party can continue running up lawyer fees OR we can have the hearing right now since you're here.

You: I will take the continuance!

Judge: Wrong. I've got other stuff scheduled then. The hearing will start right now....

 

[shaggin]

I agree that is most likely they way it would go knowing our judge. If we make the request and the judge denies it and forces us to go through with the hearing, if we don't like the judges ruling, can we then appeal it based on the judged errored in his ruling making us go forward? If we appeal it, does the judges ruling go into effect until the appeal is heard?

 

[seniorjudge]

I agree that is most likely they way it would go knowing our judge. If we make the request and the judge denies it and forces us to go through with the hearing, if we don't like the judges ruling, can we then appeal it based on the judged errored in his ruling making us go forward? If we appeal it, does the judges ruling go into effect until the appeal is heard?

Q: If we make the request and the judge denies it and forces us to go through with the hearing, if we don't like the judges ruling, can we then appeal it based on the judged errored in his ruling making us go forward?

A: Certainly. Although I cannot conceive of any case you could make that would show that you were harmed by something you knew was going to happen. You know when the hearing is so get ready for it.


Q: If we appeal it, does the judges ruling go into effect until the appeal is heard?

A: Probably.

 

[Atty-Calif001]

I agree that is most likely they way it would go knowing our judge. If we make the request and the judge denies it and forces us to go through with the hearing, if we don't like the judges ruling, can we then appeal it based on the judged errored in his ruling making us go forward? If we appeal it, does the judges ruling go into effect until the appeal is heard?

My response:

Failure to file a Proof of Service is not grounds for an objection. If you appear, you have subjected yourself to the jurisdiction of the court, and the Proof of Service becomes a moot issue. Consent to the exercise of personal jurisdiction over yourself in the proceeding, satisfies procedural due process. Thus, your general appearance waives (or, more accurately, forfeits) objections based on lack of personal jurisdiction or defective process or service of process; and orders and judgments in the action may not subsequently be attacked on that ground. [Ca Civ Pro § 415.50(a); Marriage of Sarles (1983) 143 Cal.App.3d 24, 29, 191 Cal.Rptr. 514, 517; see Fireman's Fund Ins. Co. v. Sparks Const., Inc. (2004) 114 Cal.App.4th 1135, 1145, 8 Cal.Rptr.3d 446, 453-454--defendant's general appearance forfeits objection to defective service even if he or she is then unaware such objection is available]

IAAL


IAAL

 

[seniorjudge]

My response:

Failure to file a Proof of Service is not grounds for an objection. If you appear, you have subjected yourself to the jurisdiction of the court, and the Proof of Service becomes a moot issue. Consent to the exercise of personal jurisdiction over yourself in the proceeding, satisfies procedural due process. Thus, your general appearance waives (or, more accurately, forfeits) objections based on lack of personal jurisdiction or defective process or service of process; and orders and judgments in the action may not subsequently be attacked on that ground. [Ca Civ Pro § 415.50(a); Marriage of Sarles (1983) 143 Cal.App.3d 24, 29, 191 Cal.Rptr. 514, 517; see Fireman's Fund Ins. Co. v. Sparks Const., Inc. (2004) 114 Cal.App.4th 1135, 1145, 8 Cal.Rptr.3d 446, 453-454--defendant's general appearance forfeits objection to defective service even if he or she is then unaware such objection is available]

IAAL


IAAL

Correct.

Ain't no such critter as a "special appearance"...try telling that to some lawyers!

 

[Silverplum]

Correct.

Ain't no such critter as a "special appearance"...try telling that to some lawyers!

I thought "special appearances" were only those by Heather Locklear.

 

[MomTryin2Improv]

"EX PARTE - Lat. 'By or for one party' or 'by one side.'

Refers to situations in which only one party (and not the adversary) appears before a judge. Such meetings are often forbidden.

Although a judge is normally required to meet with all parties in a case and not with just one, there are circumstances where this rule does not apply and the judge is allowed to meet with just one side (ex parte) such as where a plaintiff requests an order (say to extend time for service of a summons) or dismissal before the answer or appearance of the defendant(s).

In addition, sometimes judges will issue temporary orders ex parte (that is, based on one party's request without hearing from the other side) when time is limited or it would do no apparent good to hear the other side of the dispute. For example, if a wife claims domestic violence, a court may immediately issue an ex parte order telling her husband to stay away. Once he's out of the house, the court holds a hearing, where he can tell his side and the court can decide whether the ex parte order should be made permanent."

In other words, (at least what I am getting from this definition) it would seem that there need not be any 'proof of service' for this motion, right??

 

[seniorjudge]

"EX PARTE - Lat. 'By or for one party' or 'by one side.'

Refers to situations in which only one party (and not the adversary) appears before a judge. Such meetings are often forbidden.

Although a judge is normally required to meet with all parties in a case and not with just one, there are circumstances where this rule does not apply and the judge is allowed to meet with just one side (ex parte) such as where a plaintiff requests an order (say to extend time for service of a summons) or dismissal before the answer or appearance of the defendant(s).

In addition, sometimes judges will issue temporary orders ex parte (that is, based on one party's request without hearing from the other side) when time is limited or it would do no apparent good to hear the other side of the dispute. For example, if a wife claims domestic violence, a court may immediately issue an ex parte order telling her husband to stay away. Once he's out of the house, the court holds a hearing, where he can tell his side and the court can decide whether the ex parte order should be made permanent."

In other words, (at least what I am getting from this definition) it would seem that there need not be any 'proof of service' for this motion, right??

Right.

Go to the hearing and stop grasping at straws.

 

[weenor]

Exparte hearing? does that mean OP was not invited to the party?

 

[rmet4nzkx]

Exparte hearing? does that mean OP was not invited to the party?

No party silly, both parties are not there. Every courthouse in CA has Exparte hours for filing certain motions or to issue certain orders, it all has to start somewhere, the chicken or is it the egg

 

[THE PRACTICE]

"EX PARTE - Lat. 'By or for one party' or 'by one side.'

Refers to situations in which only one party (and not the adversary) appears before a judge. Such meetings are often forbidden.

Although a judge is normally required to meet with all parties in a case and not with just one, there are circumstances where this rule does not apply and the judge is allowed to meet with just one side (ex parte) such as where a plaintiff requests an order (say to extend time for service of a summons) or dismissal before the answer or appearance of the defendant(s).

In addition, sometimes judges will issue temporary orders ex parte (that is, based on one party's request without hearing from the other side) when time is limited or it would do no apparent good to hear the other side of the dispute. For example, if a wife claims domestic violence, a court may immediately issue an ex parte order telling her husband to stay away. Once he's out of the house, the court holds a hearing, where he can tell his side and the court can decide whether the ex parte order should be made permanent."

In other words, (at least what I am getting from this definition) it would seem that there need not be any 'proof of service' for this motion, right??

My response:

WRONG! Absolutely, wrong. "Notice" of an Ex-Parte hearing is given by telephone or fax at least 24 hours in advance of the hearing time, and then, you must Declare in your attached Declaration that such Notice was given, and the method, and by whom, and to whom it was give, along with the date and time of the Notice. Then, a copy of the Ex-Parte Application and Motion must be mailed to the opposing party, along with a copy to be served at the Hearing.

IAAL

 

[rmet4nzkx]

My response:

WRONG! Absolutely, wrong. "Notice" of an Ex-Parte hearing is given by telephone or fax at least 24 hours in advance of the hearing time, and then, you must Declare in your attached Declaration that such Notice was given, and the method, and by whom, and to whom it was give, along with the date and time of the Notice. Then, a copy of the Ex-Parte Application and Motion must be mailed to the opposing party, along with a copy to be served at the Hearing.

IAAL

I like your new screenname, reminds me of Denny Crane

 

[THE PRACTICE]

I like your new screenname, reminds me of Denny Crane

My response:

Wrong show. You're thinking of "Boston Legal."

IAAL

 

[rmet4nzkx]

My response:

Wrong show. You're thinking of "Boston Legal."

IAAL

Right and wrong, He started out on The Practice, Boston Legal is a spinoff
http://www.boston-legal.org/media-practice.shtml