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Robert Evans’s Answers

2 total


    1. I had a criminal matter in CA expunged but wonder when I am asked on an college application "have you ever been arrested or convicted" if I can answer NO since it was expunged. 2.I went thru a process to get this expunged and it was but if I...

    Robert’s Answer

    As to Nos. 2 and 3, it's going to be in the Court's records forever, assuming you weren't younger than 18 at the time of the offense.

    No. 1 is really an improper question if it really asks if you have been arrested OR convicted, not AND. But at least if there's room it enables you to say "I was arrested for ________ but the charges ere dismissed, because that's what Penal Code 1203.4 does. You could just say no and if you were caught say you thought it didn't count as a conviction (and for the purposes you're talking about it doesn't).

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  • How do I proceed against a default ruling from the court?

    I was not served papers for an unlawful detainer properly, but my landlord is proceeding to take the case to court and is trying to get a default decision by the judge. I do not want to file an answer since he did not go through the legal steps of...

    Robert’s Answer

    I assume the landlord has filed a Request to Enter Default, and that a default has been entered. If that is not the case, you need to file a "motion to quash", which is a motion that says you have not been properly served. But it must be filed before the landlord has the default entered.

    But if the landlord has obtained entry of default, he will get a clerk's judgment for possession of the premises (i.e., for eviction) without having to go before a judge, and the sheriff will serve you with a notice to vacate, giving you five days before the sheriff comes and locks you out. If a default has been entered, you need to file a request for stay of eviction (otherwise there will not be enough time), a motion to set aside the default and default judgment, and probably a request for order shortening time so that that motion can be heard more quickly than would normally be the case.

    If you have a defense to the unlawful detainer, you should probably file a proposed answer with your motion to set aside the default. You are legally correct that you should not have to do so if you were not properly served, but most judges have a pro-landlord bias (I do not know about your judge, I've never practiced in Kern County) and would use your failure to file a proposed answer as an excuse to deny the motion, especially since you knew about the case even though the service was not proper. If you can beat the landlord to the courthouse and file a motion to quash before the default is taken, the judge is less likely to do this, since it doesn't seem like you're ignoring it.

    On the other hand, if filing a proposed answer would show you have no defense, it's probably better to just base the motion on invalid service and argue that since you haven't been served you have no obligation to file an answer.

    The process server probably claims he personally served you. If his proof of service says he just left it on the doorstep, you should have a good chance (but it depends on how biased the judge is). Note, however, that if they try to personally serve you three or so times, they can get a court order for service by posting and mailing. If they did, and if they mailed a copy, the fact the process server left it on your doorstep rather than tacking it to your door probably will not impress the judge.

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