Can not being served properly be grounds for dismissing a case?

[JusticeMaverick]

Jurisdiction

California

I was never served properly in a small claims case - can this be a reason for getting a continuance or even dismissal of the case?

 

[adjusterjack]

Continuance maybe. Dismissal no.

You, in the courtroom: Your Honor, move for dismissal because I wasn't properly served.

Judge: Then how did you know to be here today?

You: Uh, uh, uh. Followed by whatever reason.

Judge: The purpose of process service is to notify you to be in court at a certain time and date. You had notice and you're here. Have you prepared a defense.

You: Uh, uh, uh. No, Your Honor, I thought...

Judge: OK, I'll give you another week. Come back time and date and be prepared.

You (sheepishly): Yes, Your Honor.

Judge: Court's adjourned for lunch. Back at 2 PM.

 

[Tax Counsel]

I was never served properly in a small claims case - can this be a reason for getting a continuance or even dismissal of the case?

Jack is wrong on this one. Proper service is required for a court to have personal jurisdiction over the defendant. If you haven't been properly served, the way to deal with that varies by state. In some states if you file any motions or make any appearances in the case you've been deemed to waive service. In those states you'd simply not appear and not respond in any way and then if a judgment is entered against you you would then move to have that judgment vacated. In other states you'd file a motion to dismiss, either with an answer or on its own, with the answer to file if the motion is rejected. Which way it should be done depends again on the court rules and practices in the state where the litigation is taking place. One way or the other, though, if service was defective you'll be able to either get the case dismissed or get it set aside.

Last I knew each county in CA has a small claims court advisor. So contact the court where the complaint was filed and see about discussing what to do with the small claims advisor. Or, see a civil litigation attorney in CA for advice. If the amount at issue is significant enough it would be worth consulting an attorney on that. Note that in CA attorneys cannot represent you in small claims court and cannot prepare or file documents with the court for you. But you can get advice on what you would need to do to properly deal with the service issue in your favor.

 

[adjusterjack]

In some states if you file any motions or make any appearances in the case you've been deemed to waive service.

That's what I was referring to in my humorous way.

 

[zddoodah]

I was never served properly in a small claims case

Please elaborate.

Start by telling us how you know the case exists if you were never served.

Does your use of the word "properly" mean you actually were served but that there were some defect in the service? If so, please explain.

can this be a reason for getting a continuance or even dismissal of the case?

Maybe. Depends on the relevant facts. Obviously, if you are making a request for a continuance, that means you know about the case. Hence, my questions above become relevant. If the plaintiff fails to serve the statement of claim and file a proof of service, then the court may eventually dismiss the case. However, that's not going to happen at the request of a defendant who has notice of the case.