Papers were not served within the required 60 days

Asked about 2 years ago - Santa Clara, CA

A civil suit/complaint was filed naming me as the defendant. The papers were not served
within the 60 days as it is required (as the court papers mention). The case itself was filed
on the last day before the statute of limitations expired. What are my options?

1. Can we point out the above and request the court to dismiss the case? Can I do this
without hiring an attorney?
2. Do you suggest that I retain the attorney? I am very confident that I can win in court
because I have evidence that the plaintiffs are not aware of.

Attorney answers (4)

  1. Frank Wei-Hong Chen

    Contributor Level 20

    4

    Lawyers agree

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    Best Answer
    chosen by asker

    Answered . The 60 days is not a strict rule in the sense that it prevents the plaintiff from continuing to pursue the litigation. Rather, it is a guideline set forth under the California Rules of Court as part of the trial delay reduction program.

    As such, the court will NOT dismiss the case on your motion.

    You most definitely ought to retain a litigation attorney to respond to the complaint. Your options are to either file an answer or perhaps file a demurrer if the complaint fails to allege facts sufficient to constitute a cause of action.

    Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in... more
  2. Paul Y. Lee

    Contributor Level 18

    3

    Lawyers agree

    Answered . I agree that the court will not likely dismiss your case based on the 60 day rule. I also agree that you should retain an attorney, especially if you think you can prevail. The likelihood of your prevailing is greatly enhanced with an attorney representing you.

    This response is for information purpose only and does not constitute a legal advice. This response does not... more
  3. Robin Mashal

    Contributor Level 19

    2

    Lawyers agree

    1

    Answered . Disclaimer: The materials provided below are informational and should not be relied upon as legal advice.

    I agree with my colleagues. So long as the action was filed prior to the expiration of the applicable statutes of limitation, the action is not time-barred. If process is not served within the 60 day period, the court may set an order to show cause (OSC) hearing for dismissal of case for failure to serve process. The plaintiff may explain the reasons for delay, and likely the court will allow plaintiff additional time for service. If plaintiff is having difficulty serving process personally, plaintiff may effectuate a substitute service of process (sometime informally referred to as a "sub serve"), and if that fails the plaintiff may seek a court order allowing publication of the summons. You should retain your own attorney and defend yourself against this lawsuit.

  4. Kevin Samuel Sullivan

    Pro

    Contributor Level 20

    2

    Lawyers agree

    Answered . The 60 day rule is not strictly enforced by the court. They often give extra time to serve the complaint. You should retain a litigation attorney to assist you.

    What kind of lawsuit is it? How much are you being sued for? I handle litigation disputes on a daily basis.

    I would be happy to discuss your options with you further.

    Kevin Sullivan

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