No Answer to Age Discrimination Complaint

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aviddiver

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I filed an age discrimination lawsuit on 1/26/11 and served the complaint on 2/3 to the company's registered agent. I sent a Notice and Acknowledgment request but did not get it back. I filed the Proof of Service to the court by mail on 3/2. There has been no answer from defendant until now- non sent to me or the court. Am I missing something that the defendant is not answering? I hate to loose this case on technicality if I had missed something. What should I think of this? The summon stated 30 days to answer.
 
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Appear in court at the appointed date/time prepared to make your argument.
If they fail to show and you can prove that you gave proper service then ask for a default judgment in your favor.
 
Thank you, mightymoose.
When I go to the court's website and search my case, my complaint and proof of service are entered and can be viewed with date filed. What is the appointed date and time? Do you mean 30 days from serving the complaint or 30 days from filing the proof of service? I do not have a hearing date on my complaint.
 
Well the appointed date and time is your hearing date when you get it.
The court staff can answer any questions you have about procedure. Contact the court and find out what you still need to do to get in front of a judge.
 
Go For Default Judgment!

No, you have not missed anything and have followed the right procedure for the service of process and their not appearing in the case in any shape or form works very much in your favor.

The ball is now back in your court and the correct move for you, and indeed THE only move available to you, would be to file a Request for Entry of Default with the clerk of the court and serve duplicates on the defendants via mail. You will then have to calendar a date to be heard on a motion for Entry of Default Judgment and serve the notice of the motion and the motion on the defendants as well via mail, or, you can elect to go ex parte, but will then have to give cause in your motion as to why the defendants were not noticed of the action. And once the default judgment is entered on that date, you will be the prevailing party and can go after the defendant for the relief prayed for in the original complaint.

But do not count your chickens until at least six months after the entry of default judgment, during which time the defendants can and may very well come out of the woodwork to file a motion to Set Aside Default Judgment and Leave to Answer Complaint, which I suspect what is happening here. And some defendants tend to come out of hiding at the mere receipt of the notice for entry of default judgment.

And just F.Y.I.; to request for entry of default in California you HAVE to use the Judicial Council Form and cannot do it in a pleading format, and vice versa for the entry of default judgment.

Good Luck.

fredrikklaw

fredrikklaw
 
Thank you for your advise. Is there a deadline or timeframe to request for entry and default judgment? I just checked the court website and it isnow showing that a Demurrer/Motion to Strike has been filed, however, does not say by whom. It was scheduled for next month.

Thank you, again.
 
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Not so fast!

AVIDDIVER:

First and foremost, do check to make sure the address you have given on your complaint is correct because you should receive service of all the papers filed with the court by the defendant and it does not sound like you have received any so far in this case; you may also want to call up the opposing counsel with the same inquiry.

As for applying for default, well, that is off the grid for now since the defendant has officially appeared in the case, albeit about two weeks late and you are fortunate they have appeared somewhat belatedly now than in five months' time and after having set aside the default judgment. But, and this is the big BUT here, they do not get carte blanch and may have very well lost some of their ammunition for responding late. You see, a motion to strike and a demurrer are objections to the complaint which should be raised within the time allowed to answer the complaint, which in this case is (and was) 30 days from the date of service of process.

So when you do finally receive the notices for the motion to strike and the demurrer, check their filing date and if you see that they were filed beyond the allowed 30 days, then you should move to have them both dismissed for being untimely and demand an immediate entry of default judgment, or in the alternative, demand that the defendant answer the complaint within 10 court days. Because a timely filed demurrer extends the time in which a defendant can answer the complaint, a quirk of the Civil Code which this defendant is trying to hide behind and is also hoping would go unnoticed by you, since you are appearing pro se.

However, if the papers were timely filed, you would then have no choice but to prepare and file oppositions to the motion to strike and the demurrer. But even supposing for the fact that the objections were timely filed and the judge grants the defendants' motion and sustains their demurrer, the overall, and the absolute worst case scenario for you would be an order to file an amended complaint within so many days (10 I believe).

But first try to kick them out if they were not filed in time. At the very least, it will show the opposition you are paying attention and you cannot be taken for granted just because you are flying solo.

fredrikklaw
 
I have been calling the court to no avail. I wanted to know if I can file the request for Entry of Default by mailing it to court or do I have to go down and file it personally. The court is San Diego and I am in LA.

Although the defendant had filed a Demurrer and Motion to Strike after 30 days, will the court/judge sanction me and order to show cause for not filing for default?

Thank you.
 
In layman's terms, what is "Judicial Notice"? It says , "Complaint Sufficient by Inclusion of Judicially Noticed Matter". Is the Mcdonnell Douglas analysis considered Judicial Notice being that t has been adopted for both Federal and State discrimination cases?

Thank you.
 
I have been calling the court to no avail. I wanted to know if I can file the request for Entry of Default by mailing it to court or do I have to go down and file it personally. The court is San Diego and I am in LA.

Although the defendant had filed a Demurrer and Motion to Strike after 30 days, will the court/judge sanction me and order to show cause for not filing for default?

Thank you.

You are too late for Default Judgement! The Defendants filed a Motion to Strike/Demurrer! Even though it was after the 30 day period to respond, since you didn't get the Request for Default in before they answered, it is likely you have no grounds to prevail on a Default request.

Now, you must respond to the Demurrer in a timely fashion. Once you do that, their will be a tentative ruling which may or may not be in your favor. The Hearing that is scheduled to take place for oral arguments is academic since the decision is made even before oral arguments. Rarely does oral arguments change the tentative ruling. Good luck!
 
Appear in court at the appointed date/time prepared to make your argument.
If they fail to show and you can prove that you gave proper service then ask for a default judgment in your favor.

There is no date and time to appear in court at this stage! When a Complaint is filed, the Defendant has 30 days to Answer. If he doesn't Answer within the 30 day period, the Plaintiff must file a Request for Default Judgement and serve it through the mail to the Defendant. Then there might be a Hearing if the Defendant can reasonably explain why he was past the 30 day response period.
 
Thank you wisemans_voyage for your post, however, I do not see the connection between your post and my question.

The defendant did not answer my complaint within 30 days. However, they filed a demurrer and motion to strike. We do have a hearing for the demurrer and I have a few more days to file an opposition to the Demurrer to complaint.

My question above is about judicial notice and if the Mcdonnell Douglas analysis for disparate treatment considered a judicial notice. Here are items I am considering to oppose the demurrer:

THE GENERAL DEMURRER TO THE COMPLAINT SHOULD BE OVER-RULED BECAUSE A FACTUAL DISPUTE STILL EXISTS AS TO MATTERS THAT ARE ASSOCIATED WITH OR FLOW FROM THE JUDICIALLY NOTICED MATTER.

A. Taking of Judicial Notice Does Not Require Acceptance of Truth of Related Factual Matters.
OR B. Judicial noticed matter not dispositive of demurrer when factual dispute exists.
OR C. Matter requested to be judiially noticed not supported by sufficient information.

What does all these mean? I wonder if I can use any of these to oppose a demurrer to complaint?

Thank you.
 
Thank you wisemans_voyage for your post, however, I do not see the connection between your post and my question.

The defendant did not answer my complaint within 30 days. However, they filed a demurrer and motion to strike. We do have a hearing for the demurrer and I have a few more days to file an opposition to the Demurrer to complaint.

My question above is about judicial notice and if the Mcdonnell Douglas analysis for disparate treatment considered a judicial notice. Here are items I am considering to oppose the demurrer:

THE GENERAL DEMURRER TO THE COMPLAINT SHOULD BE OVER-RULED BECAUSE A FACTUAL DISPUTE STILL EXISTS AS TO MATTERS THAT ARE ASSOCIATED WITH OR FLOW FROM THE JUDICIALLY NOTICED MATTER.

A. Taking of Judicial Notice Does Not Require Acceptance of Truth of Related Factual Matters.
OR B. Judicial noticed matter not dispositive of demurrer when factual dispute exists.
OR C. Matter requested to be judiially noticed not supported by sufficient information.

What does all these mean? I wonder if I can use any of these to oppose a demurrer to complaint?

Thank you.

Usually Judicial Notice concerns another legal matter that you may have litigated which does not allow you to litigate this matter because it would be Res Judicata or relitigating something that has already been decided.

If this isn't the case with you, you can pretty much oppose the Demurrer/Motion to Strike with any facts that support your case. You should definitely consider the fact Defendants responded later than the 30 day period imposed by the court.
 
Usually Judicial Notice concerns another legal matter that you may have litigated which does not allow you to litigate this matter because it would be Res Judicata or relitigating something that has already been decided.

If this isn't the case with you, you can pretty much oppose the Demurrer/Motion to Strike with any facts that support your case. You should definitely consider the fact Defendants responded later than the 30 day period imposed by the court.

None of your answer is correct.

I'd be careful of following the advice of wisemans_voyage.
 
Thank you for the heads-up, seniorjudge. I have been researching judicial notice all day and wisemans_voyage does not seem to agree with anything. However, he raised a good point and for me to research on and is this:

Can I introduce exhibits to support my allegations in the opposition to demurrer to complaint? My evidence are printouts of email messages to support allegations which might be attacked on its authenticity and so on.

Thank you, sir.

by the way, I am also attacking the untimely response as such (case law):
THE DEMURRER SHOULD BE STRICKEN BECAUSE IT WAS NOT FILED WITHIN THE TIME FOR FILING SUCH PLEADINGS.
The summons served on the defendant must contain a direction that the defendant file or cause to be entered on the docket a pleading in response to the complaint within 30 days of service of the complaint (Code Civ. Proc. § 412.20(a)(3); see Code Civ. Proc. § 430.40(a) (time to demur)).
 
Sounds like fredrikklaw knows what he's talking about.

Default judgments are never favored so I suspect the defendant will get to file an answer.

But when you argue your motion, use everything you've got. Even if the court doesn't allow the defendant's answer doesn't mean you've won.
 
I agree, fredrikklaw does. Although I did not file for default, I am preparing my opposition to demurrer and first argument is the untimely filing of response to complaint. Still remains is my question above - Can I include exhibits to my opposition? Or do I bring evidence to the hearing? I've read that defendant cannot present evidence in the demurrer hearing and I would think that applies to me, too.
 
Usually Judicial Notice concerns another legal matter that you may have litigated which does not allow you to litigate this matter because it would be Res Judicata or relitigating something that has already been decided.
I am with Army Judge on this part although I think I understand what you're trying to say. My understanding is that judicial notice is something that a court accepts as being true because it's so well known and the plaintiff doesn't have to go through the burden of proving it independently. For example, "a disaster occurred in New York City on 9/11/01 whereby the World Trade Center was destroyed by an airplane that..." A court can take judicial notice of this fact sought to be introduced into evidence by one of the parties and have the court accept the truth of the statement without independent verification. A court can take judicial notice of a decision, e.g. Roe v. Wade. Perhaps the court recognizes that something took place and that's all. This is my understanding.

If this isn't the case with you, you can pretty much oppose the Demurrer/Motion to Strike with any facts that support your case. You should definitely consider the fact Defendants responded later than the 30 day period imposed by the court.
I don't know what the penalty is for responding after the 30 day period in this instance. You should probably find out what the rules are regarding an answer that is filed after the 30 day period before taking a position. In addition, we don't know what is in the demurrer either. Is there an admission of some of the facts? Perhaps the court accepts that McDonnel Douglas analysis but the opposition in the demurrer is stating that you still haven't plead all the elements -- I don't know what the opposition is. Maybe I'm just not reading this completely.
 
Sorry, I should have posted what was demurred. Defendant claims that the pleading does not state facts sufficient to constitute a cause of action for all causes of actions (Cal. Code of Civ. Proc. 430.10(e)) - age, national origin, retaliation, and wrongful termination. This is a general demurrer to a complaint.
 
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