Q: If defendant confront motions because of service issue, how plaintiff shall oppose?
Motions were provided for service by process immediately, after motions were timely filed with court. But after 2.5 weeks proofs of service were not filed yet, and service was not proper. Current in working to fix. Plaintiff documented track record.
If defendant confront motions because of service issue, how plaintiff shall oppose?
A:
If the defendant challenges the motions due to improper service, the plaintiff can oppose the challenge by doing the following:
1. Demonstrate due diligence: Provide evidence showing that the plaintiff made reasonable efforts to serve the defendant properly and in a timely manner. This can include documentation of the attempts made to serve the defendant, such as proof of hiring a process server or sending the motions via certified mail.
2. Explain the circumstances: Provide a detailed explanation of the reasons for the delay in filing the proofs of service. This may include any difficulties encountered during the service process, such as the defendant avoiding service or the process server facing unexpected challenges.
3. Argue substantial compliance: Assert that the plaintiff substantially complied with the service requirements, even if there were some technical deficiencies. Emphasize that the defendant received actual notice of the motions and that the service issues did not prejudice their ability to respond.
4. Request an extension of time: Ask the court for an extension of time to properly serve the defendant and file the proofs of service. Explain the efforts made to correct the service issues and provide a timeline for completing proper service.
5. Cite relevant case law: Research and cite any relevant case law that supports the plaintiff's position. Look for cases where courts have allowed motions to proceed despite technical deficiencies in service when there was substantial compliance and no prejudice to the defendant.
6. Argue against dismissal: If the defendant seeks dismissal of the motions due to the service issues, argue that dismissal is a harsh remedy and not warranted under the circumstances. Emphasize the plaintiff's good faith efforts to comply with the service requirements and the lack of prejudice to the defendant.
Remember that the specific arguments and strategies will depend on the particular facts and circumstances of your case, as well as the applicable California laws and local court rules. It is always advisable to consult with an experienced attorney to discuss the best approach for your situation.
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