My last name was erroneously mispelled on a judgment case in CA. The plaintiff also filed a request for dismissal of Does/Roes. The misspelled name remained. Default Judgment was entered and bank account eventually levied. I never knew of the suit until then. The judgment never hit my credit due to the incorrect spelling of my name. It wasn't until recently that the lawyer representing plaintiff added that (name) is one and the same as (name). Aside from motioning to set aside this default judgment, can I also request for the dismissal of the suit based on this account? In addition, I am arguing that the debt was satisfied at the time and the plaintiff has unclean hands since all contracts were oral and no proof exists on the contrary aside from invoices that plaintiff printed.
A misspelling of your last name would not in itself be a basis to request dismissal of a lawsuit. However, if you were never served with the summons and complaint, you (or your attorney) can make a motion to set aside the default and to vacate the default judgment pursuant to Code of civil Procedure section 473.5.
Once you get the default set aside, you will have the opportunity to defend the claims, including raising "accord and satisfaction", "novation", "unclean hands" , "statute of frauds" and other possible affirmative defenses.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
3 lawyers agree
Personal Injury Lawyer
The misspelling does not allow a dismissal. If a judgment was entered than the complaint was served on you either personally or by Court ordered substituted service. You need to pull the Court file and see how you were served. If there is something incorrect about the service, you need to immediately hire an attorney and file a motion to set aside the default judgment. You need to show with affidavit that the service was incorrect and that you have a meritorious defense to the lawsuit. The more time that passes now the harder it is to set the judgment aside. Get a lawyer. Good luck.
You should consult an attorney in your State at once. Visit our webpage and tell us what you think. www.schnitzerlaw.net
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Employment / Labor Attorney
The dismissal of the DOES and ROES would not give you a basis for dismissal. Had the issue been caught during the litigation, the solution was not to name you as a DOE or ROE, but to do an amendment to the complaint. This amendment process can occur even post-trial.
Continue with the motion to set aside default. That is the proper approach for your situation.
Good luck to you.
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1 lawyer agrees