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    Slightly mispelled name of person served w/ summons and complaint. Fatal error?

    Jurisdiction / State: California

    Hi,



    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 error in the spelling of the first name of the person who was 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.

    Thank you,

    iamHankster
    Last edited by iamHankster; 04-03-2012 at 01:20 AM. Reason: Grammar

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    I suggest you hire an attorney. You have no clue as to what you're doing.
    U C a physician 4 your medical issues. U should C a lawyer 4 your legal issues!

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    Do nothing. You have no problem.

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    I agree that you have nothing to worry about. You are making a big deal over something very trivial. Worst case scenario; if the name was spelled incorrectly on the Complaint, the only thing the Defendant can do is file all future pleadings with the "erroneously sued as" correction. This tends to be more burdensome especially since it provides no benefit whatsoever to the Defendant. Sometimes attorneys include that to sort of mock(on the sly) the opposing party for their mistake.

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    Hi mightymouse,

    Do you remember your response to my post of 04-03-2012 entitled “Slightly mispelled name of person served w/ summons and complaint. Fatal error? “

    You replied, “Do nothing. You have no 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 09:13 AM.

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    Registered User Samaritan & Scholar
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    You can get the answer you need from the court clerk. A common spelling error will not invalidate the service of the documents.
    The clerk can tell you what you might need to do to correct the spelling error if necessary in order to file for default.

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    File and amended return. No need to repeat the service.

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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 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 09:16 PM.

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    Long ago,I tried to contact server, but he had since moved and was unlocatable

    First of all, I had to choose among what I regarded as seemingly inconsistent forum replies to my questions.

    Ultimately, I chose to have the server fill out another proof of service (POS), as it was certainly the soundest solution.

    I earnestly attempted to contact the server in order to have him fill out a new POS, i.e., with the name of the person served correctly spelled. Unfortunately, I learned that the server had moved. I diligently tried to contact him, but without success.

    Subsequently, the defendant did not file any responsive pleading whatsoever or motion to quash within the statutory deadline. Consequently, I filed a Request for Entry of Default.

    I brought the misspelling (of the name of the person served) to the attention of the clerk in the Default Department. That clerk told me to have the server fill out a new POS. She indicated that the misspelled name in the POS on file was the only error preventing her from entering the default.

    Can someone answer my above two questions, please?

  10. #10
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    OK, here's the deal, at least in Calif. A slightly mispelled name won't invalidate the Complaint or Summons. The courts generally look to see if the correct and mispelled names "sound the same". HOWEVER, before you can take a defendants default or obtain a judgment the complaint needs to be amended to set forth the CORRECT spelling. If you fail to do this the clerk will enter judgment against the mis-spelling in the complaint and this could prevent successful collection efforts.

    Paul

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