Clayton, CA asked in Contracts for California

Q: Complaint served on July 28th. Pro se Defendant attempted to file answer twice but denied because of procedural errors.

First procedural error was lack of proof of service. Second for lack of fees. Request for entry of default entered on August 28th after personal service. Defendant hires attorney on September 18 who demands dismissal of default. How probable is the defense to win on excusable neglect-given policy to hear case based on merits? Even if defense wins, it appears CCP 473 requires defense attorney to pay fees and fines and that he cannot request Plaintiff to pay attorney fees.

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1 Lawyer Answer
Maurice Mandel II
Maurice Mandel II
Answered
  • Newport Beach, CA
  • Licensed in California

A: Hmm, let me consult my crystal ball about the chance a Judge will decide in your favor. Eureka!! It says you have a very good chance of overturning the default based on public policy!!!! The best things in your favor are your two TIMELY failed attempts while in Pro per, and the fact that you retained an attorney to act promptly for you. Your attorney needs to: 1. send a letter to the other side requesting they stipulate to vacate the default, giving them about 10 days to respond- he should send the stipulation with the letter and 2. If they refuse, file a motion to vacate the default. The crystal ball also says that it is highly unlikely that you will get any attorney's fees, because the plaintiff and his attorney, did what they were legally entitled to do.

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