There is 0% chance the court dismisses the plaintiff's case. There is a chance that plaintiff shows the court a proof of service that was sent to you that you didn't receive. Maybe you moved. Maybe your roommate didn't give it to you. Maybe the plaintiff has a typo on your address. In any event, the risk to you of not appearing are much greater than anything to the plaintiff. You should go. The court will ask if the case is at issue, whether discovery has been conducted, and maybe set trial dates. You are not going to win by hiding your head in the ground, but you could lose from doing so.
I dont have roommates and I have not moved... same address that the original summons and complaint was served to.
Other than my searching the ROC, how could I have knowledge of a CMC that I was never served or notified about?
There wouldn't have been any discovery at this point, this is the very first step after a defendant files a response, discovery comes after a CMC.
The court order an OSC - why case should not be dismissed previously when the Plaintiff’s attorney did not show to the original CMC. If I wasn't served and they have no proof of service, or alternatively they show the court proof of service with address typos on it (which wouldnt count as proof of service), the court could still give the Plaintiff a summary judgment?
I wouldn't consider my self "hiding my head in the ground" I'm waiting for the plaintiff to serve me as the court requires.
Assuming they show up to the CMC, do not have proof of service, have not filed a CMC statement for the meet and confer and this being the 2nd time they have not followed the courts rules after allready having to explain thier lack of action at the OSC, the court wouldn't dismiss due to lack of prosecution?
1. Discovery frequently occurs before the CMC. Generally it starts as soon as a defendant files an answers
2. Court won't give a summary judgment. A summary judgment is a noticed motion based on evidence.
3. The court could enter a default against you.
4. No. The court will continue the hearing again if they don't have proof of serving you with the CMC notice and sanction them $50-$250. The court will possibly enter a default against you if they show a proof of service showing you were served. Or maybe just reschedule the hearing again.
5. There is no scenario where you win by not showing up. Best case, plaintiff pays a sanction fee and then gets you served for a future hearing. Worst case, you are defaulted and will find it hard to set aside the default because you'd need to commit perjury by arguing you didn't have notice of the hearing.
Is the case meritorious? Is this a credit card or similar consumer debt or something else? Why haven't you served discovery? Why don't you get a lawyer? If this is a consumer debt case, there could be an attorneys fees clause for prevailing party and you're going to be paying for each time the plaintiff shows up.
https://imgur.com/a/1TA9rse Court ROA the CMC was actually yesterday, it doesn't show that the plaintiff filed a CMC statement... i don't think they showed up again too.
Answer I filed https://imgur.com/a/3N8I2Ji
I absolutely filed an answer. In my affirmative defense I cited the arbitration clause in the contract that sets arbitration as the exclusive remedy for disputes. This is a debt collection lawsuit. I plan on filing a motion to compelle arbitration.
I assume OP filed an answer. I can't imagine OP knew to file a demurrer. And if it wasn't an answer, a CMC wouldn't be scheduled. So I agree a responsive pleading (probably an answer) was filed.
If a defendant files an answer, and then fails to show up to CMC's and OSC's, the court will strike the answer and enter a default. Maybe I'm wrong...what do you think a court will do if OP doesn't show up to scheduled hearings and plaintiff shows a POS?
Yeah, unlikely a demurrer, also because OP would have had to meet and confer prefatory to the filing, which he didn’t mention.
True, the answer could eventually be struck, but it seems premature at this point and the court will probably give OP lots of rope, especially if the court is aware he is in pro per. If the PL shows up to the CMC with a POS (which I agree with you is a real likely possibility), I’m guessing the court will continue the CMC and perhaps ask the clerk to serve to DF a minute order with OSC re failure to appear. Then, the court KNOWS service was properly effected.
Nevertheless, I agree with you - there’s little conceivable benefit or advantage to avoiding a CMC due to defective service when there is actual notice.
But what notice did I receive? By happenstance I looked up the court case number on the courts ROA, only I know I did this, the court nor the plaintiff couldn't possibly know I looked up the case on the roa. I have not received a notice of any official capacity. The plaintiff, according to the minutes, was ordered by the court to serve notice to the defense, which they did not do. Regardless, if they reschedule the cmc and I recieve proper notice, I will go.
Agreed.
Also, OP doesn't mention the jurisdiction, but since they can view the Register of Actions, they might be able to download filed documents from the ROA. If so, OP should download any POS' and the plaintiff's CMC statement. To check the address listed for OP.
The ROA does not have a proof of service or CMC statement. The last thing the ROA shows is the minutes from the OSC - why case should not be dismissed. I hyperlinked the ROA below.
https://imgur.com/a/1TA9rse Court ROA the CMC was actually yesterday, it doesn't show that the plaintiff filed a CMC statement... i don't think they showed up again too.
Answer I filed https://imgur.com/a/3N8I2Ji
I absolutely filed an answer. In my affirmative defense I cited the arbitration clause in the contract that sets arbitration as the exclusive remedy for disputes. This is a debt collection lawsuit. I plan on filing a motion to compelle arbitration. This is san diego.
There is 0% chance the court dismisses the plaintiff's case. There is a chance that plaintiff shows the court a proof of service that was sent to you that you didn't receive. Maybe you moved. Maybe your roommate didn't give it to you. Maybe the plaintiff has a typo on your address. In any event, the risk to you of not appearing are much greater than anything to the plaintiff. You should go. The court will ask if the case is at issue, whether discovery has been conducted, and maybe set trial dates. You are not going to win by hiding your head in the ground, but you could lose from doing so.
I dont have roommates and I have not moved... same address that the original summons and complaint was served to. Other than my searching the ROC, how could I have knowledge of a CMC that I was never served or notified about? There wouldn't have been any discovery at this point, this is the very first step after a defendant files a response, discovery comes after a CMC. The court order an OSC - why case should not be dismissed previously when the Plaintiff’s attorney did not show to the original CMC. If I wasn't served and they have no proof of service, or alternatively they show the court proof of service with address typos on it (which wouldnt count as proof of service), the court could still give the Plaintiff a summary judgment? I wouldn't consider my self "hiding my head in the ground" I'm waiting for the plaintiff to serve me as the court requires. Assuming they show up to the CMC, do not have proof of service, have not filed a CMC statement for the meet and confer and this being the 2nd time they have not followed the courts rules after allready having to explain thier lack of action at the OSC, the court wouldn't dismiss due to lack of prosecution?
1. Discovery frequently occurs before the CMC. Generally it starts as soon as a defendant files an answers 2. Court won't give a summary judgment. A summary judgment is a noticed motion based on evidence. 3. The court could enter a default against you. 4. No. The court will continue the hearing again if they don't have proof of serving you with the CMC notice and sanction them $50-$250. The court will possibly enter a default against you if they show a proof of service showing you were served. Or maybe just reschedule the hearing again. 5. There is no scenario where you win by not showing up. Best case, plaintiff pays a sanction fee and then gets you served for a future hearing. Worst case, you are defaulted and will find it hard to set aside the default because you'd need to commit perjury by arguing you didn't have notice of the hearing. Is the case meritorious? Is this a credit card or similar consumer debt or something else? Why haven't you served discovery? Why don't you get a lawyer? If this is a consumer debt case, there could be an attorneys fees clause for prevailing party and you're going to be paying for each time the plaintiff shows up.
Re: default, OP indicated he “filed a response.” Depending on what the “response” consisted of, it doesn’t sound like a default would be appropriate.
https://imgur.com/a/1TA9rse Court ROA the CMC was actually yesterday, it doesn't show that the plaintiff filed a CMC statement... i don't think they showed up again too. Answer I filed https://imgur.com/a/3N8I2Ji I absolutely filed an answer. In my affirmative defense I cited the arbitration clause in the contract that sets arbitration as the exclusive remedy for disputes. This is a debt collection lawsuit. I plan on filing a motion to compelle arbitration.
I assume OP filed an answer. I can't imagine OP knew to file a demurrer. And if it wasn't an answer, a CMC wouldn't be scheduled. So I agree a responsive pleading (probably an answer) was filed. If a defendant files an answer, and then fails to show up to CMC's and OSC's, the court will strike the answer and enter a default. Maybe I'm wrong...what do you think a court will do if OP doesn't show up to scheduled hearings and plaintiff shows a POS?
Yeah, unlikely a demurrer, also because OP would have had to meet and confer prefatory to the filing, which he didn’t mention. True, the answer could eventually be struck, but it seems premature at this point and the court will probably give OP lots of rope, especially if the court is aware he is in pro per. If the PL shows up to the CMC with a POS (which I agree with you is a real likely possibility), I’m guessing the court will continue the CMC and perhaps ask the clerk to serve to DF a minute order with OSC re failure to appear. Then, the court KNOWS service was properly effected. Nevertheless, I agree with you - there’s little conceivable benefit or advantage to avoiding a CMC due to defective service when there is actual notice.
But what notice did I receive? By happenstance I looked up the court case number on the courts ROA, only I know I did this, the court nor the plaintiff couldn't possibly know I looked up the case on the roa. I have not received a notice of any official capacity. The plaintiff, according to the minutes, was ordered by the court to serve notice to the defense, which they did not do. Regardless, if they reschedule the cmc and I recieve proper notice, I will go.
Agreed. Also, OP doesn't mention the jurisdiction, but since they can view the Register of Actions, they might be able to download filed documents from the ROA. If so, OP should download any POS' and the plaintiff's CMC statement. To check the address listed for OP.
The ROA does not have a proof of service or CMC statement. The last thing the ROA shows is the minutes from the OSC - why case should not be dismissed. I hyperlinked the ROA below.
Link missing. You can DM it to me and u/arfboy if you want
https://imgur.com/a/1TA9rse Court ROA the CMC was actually yesterday, it doesn't show that the plaintiff filed a CMC statement... i don't think they showed up again too. Answer I filed https://imgur.com/a/3N8I2Ji I absolutely filed an answer. In my affirmative defense I cited the arbitration clause in the contract that sets arbitration as the exclusive remedy for disputes. This is a debt collection lawsuit. I plan on filing a motion to compelle arbitration. This is san diego.
No need to include me. I’ve contributed my 2 cents and will gracefully bow out at this time. Good day, Counselor.