"We won't! We won't, we won't, we won't." -- Public Counsel

We were not directly involved in this little dispute, but it so perfectly demonstrates why big firms don't work, that we had to include it.

The plaintiff, represented by Public Counsel, was suing two defendants. We accepted service on behalf of our client and filed an answer to the complaint, but the other defendant claimed he had not been served properly and refused to answer. This is not uncommon, and it is usually solved by a phone call between counsel.  Little is gained by "dodging" service or seeking entry of a default.

To that end, defense counsel called Public Counsel and explained that service had not been proper, and suggested that the defendant be served again, this time properly, so as to not delay the action further.  Plaintiff knew where the defendant worked, so there was no issue about being able to serve the defendant.  For about $30, the defendant could have been served, and would have appeared in the action 30 days later.

Public Counsel refused to do it the easy way.  Instead, the firm waited until the defendant was past the 30 days, and filed a request for entry of default.  Understand, that even if Public Counsel had been able to enter a default against the defendant, at best defense counsel would simply file a declaration and have the default vacated, at worst the matter could go all the way to judgment, only to be overturned for the original defective service. There was nothing to be gained by seeking a default under these facts.

The court rejected the default because -- surprise -- the service had been improper.  More time went by and Public Counsel filed the request a second time. The request was rejected a second time. Undeterred, and with defense counsel saying, "just serve the defendant and you can avoid all of this," Public Counsel then brought a motion to have the default entered, taking the position that the court clerk just did not understand the situation and that default should have been entered.  Six months after the original defective service, the court denied the motion, and told Public Counsel it would have to properly serve the defendant.  So, adding the 30 days defendant has to answer the complaint after he is finally properly served, Public Counsel will have delayed the action around seven months. All because Public Counsel did not want to back down on the issue of whether the defendant had been properly served.

For more Public Counsel, go to "Public Counsel Continues its Losing Streak".

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Aaron P. Morris is a Partner in the Tustin, California office of Morris & Stone, LLP.  When he's not taking Public Counsel to the woodshed, he can be reached at (714) 954-0700, or amorris@toplawfirm.com.