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Request for Entry of Default was Denied due to 'Proof of Service And Summons is defective'. How Can I Challenge That?

Carmichael, CA |

Situation, in California superior court, civil: Served Cross Complaint. Much later put in Request for Entry of Default as they had not answered.
Clerk later denied due to 'Process Of Service of Summons is defective' with no reasoning for what was defective.
The process serving company can't find anything wrong with it.
The good folks at the Law library can't see anything wrong with it.
Questions:
1. Does the the court clerk's have to give indication of why something was denied other than a broad sweeping 'defective'.
2. What are the avenues of challenging a clerk's decision?
3. Is there a specific time in which an Request for entry of default must be entered after the time a response was due? I see that it's any time before a response is entered (after the 25 days), and 10 days.

Edit: 35 days (30 plus 5 for mailing)

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Attorney answers 2

Posted

If you think the clerk is incorrect, you can submit an application for an order directing the clerk to enter the default. Before you do that, have an attorney review the proof of service.

Asker

Posted

Application for an order directing. Ok, thanks. Yes, I've been thinking I need some kind of 'authority' to state that there's nothing wrong with it. It's a bummer the clerk is 100% unwilling to tell me what's defective about it. I don't know if it actually is, or if the clerk is 'wrong'. Without some kind of statement as to what they found to be defective, it just seems arbitrary....

Posted

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

The Clerk's office has a "reject sheet" that they typically mark up and enclose with any items rejected. If you find that sheet, it should give you a good indication what you may need to cure. Otherwise, you can pay a visit to the Clerk's office and see if they can explain the defect to you. If it turns out that the "proof of service" form was defective, such as an outdated form was used, the remedy would be to ask your process server to fill out the correct form and submit it. However, if "service" was not properly accomplished, you will likely have to pay your process server to make proper service and provide you proof. If personal service is made, you will need to allow at least 30 days before you can submit another request for entry of default. Be sure to consult your own attorney to protect your legal rights.

Asker

Posted

Thanks Robin. The clerk was adamant that she doesn't have to tell anyone why something was labeled 'defective'. Like that's legal advice or something. Lack of a 'reject sheet' put a huge burden on people, as we have no idea why the clerk thought it was defective. I'll go back in Monday, but I suspect they don't keep a reject sheet. I got the Civil Procedures binder from the law library in which hopefully I will find the procedure the clerk is supposed to follow. If I resubmit a correct form, does that mean the orginal date of request for entry of default was submitted will hold? Or does it count as a new submission date?

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