THERE are situations in both Divorce and Child Support cases where the Summons and Petition resulted to a default against one party for failing to respond on time. In certain situations, the defaulted party failed to respond on time because he or she did not even know that he or she was served with a Summons. This situation places the defaulted party in a precarious situation in that the first time the defaulted party usually becomes aware of the existence of the case is when the default child support judgment or divorce judgment is actually being enforced against the defaulted party. At this point, the party no longer has the right to participate or defend itself in the litigation.
Based on my experience in practice, the defaulted party usually gets in this situation because they moved residences and the summons was served at the prior residence. Sometimes, the proof of service of summons is fraudulent or defective. Fortunately, relief is available for the defaulted party. If a default judgment is entered against a party who was served with summons, but service did not result in actual notice in time to defend the action, the party may serve and file a notice of motion to set aside the default or default judgment, and for leave to defend the action. Code Civ. Proc., § 473.5, subd. (a)
“Actual notice” means genuine knowledge of the party litigant. Rosenthal v. Garner, 142 Cal. App. 3d 891, 191 Cal. Rptr. 300 (2d Dist. 1983) The Courts has strictly construed this term to implement a policy of liberally granting relief so that cases can be resolved on their merits. Olvera v. Olvera, 232 Cal. App. 3d 32, 283 Cal. Rptr. 271 (4th Dist. 1991) In addition, actual notice by a party’s attorney will not be imputed to the client. Rosenthal v. Garner, 142 Cal. App. 3d 891, 191 Cal. Rptr. 300 (2d Dist. 1983) There is an additional angle of argument available for non native English speakers. Receipt of summons and complaint by a non-English speaking defendant lacking in business sophistication may not impart “actual knowledge.” Goya v. P.E.R.U. Enterprises, 87 Cal. App. 3d 886, 151 Cal. Rptr. 258 (2d Dist. 1978); Tunis v. Barrow, 184 Cal. App. 3d 1069, 229 Cal. Rptr. 389 (2d Dist. 1986) So even if you actually received the complaint, if you do not speak English and are not sophisticated with business and legal matters, you may use the arguments that the default judgment should be set aside because you did not receive “actual notice.” It is the Court’s policy to, as reflected in the Olvera case, to liberally grant setting aside such defaults and having the case heard on the merits.
Default Judgment may be set aside by an attorney by filing a Motion for relief from default. This would be accompanied by a declaration from the defaulted party that he never received actual notice. A copy of the proposed response is also required to be filed with the court. This type of motion must be filed and served within 2 years after entry of default judgment or within 180 days after service of a notice of default or default judgment on the defaulted party, whichever comes first. If you are a defaulted party, you should retain the representation of an experienced attorney to set the default aside as soon as you can.
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Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, APLC. This article is not a solicitation.
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Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, APLC. is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected] or visit our website at Kenreyeslaw.com.
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