How should I handle a motion to dismiss?

I'm sueing a former roomate for non-payment of rent. The roomate has made a motion with the court to dismiss, citing these reasons:



1. Not following statutory procedure for obtaining service.



She left without leaving a forwarding address. I paid a police officer to serve my paperwork to her at her parent's house (where she frequently visits). At the time, she was not present, so the police officer served the papers on her mother and the mother stated she would give them to her daughter (my roomate).



Clearly she got the papers, otherwise she wouldn't be doing a motion to dismiss.



2. She claims the landlord released her from the lease due to dangerous living conditions with me. Her and the landlord signed a new lease for a different building and unit. The landlord told me that the first lease (with both of us on it) has remained unchanged.



3. The plaintiff (me) has been paying the full rent amount since August 2006 and did not sublet or find another roommate.How should I handle a motion to dismiss?I don't know what jurisdiction you are in so this is a hard question to answer. I'll assume that you are in CA...



You did NOT correctly serve her. You can use subsituted service to serve someone over 18 who lives in her home or who is a person of responsibility at her work. You can't just decide to serve her mom because she's there. Sorry.



Even though she got the papers, if she was not properly served it doesn't count. Next time hire a process server to do a skip trace. The police often cost MORE than a process server. You can add all court costs to the judgement though so it doesn't really matter.



I am assuming that you have a court date set for her motion to dismiss. Go. If she loses, that's that. If she wins, you may just have to do the trial over again.



You will not get all the rent from August 2006 until now. You have a legal responsibility to mitigate your damages and find a new roommate. If you don't do that then you waive any rights to sue for rent for the unrented period.



Have your LL write a declaration for court. If your ex-roommate believes she was released from her obligations with the LL then she needs to file suit with him.



If you have any more questions just send me an e-mail. GL!How should I handle a motion to dismiss?
the same way you just did. You stated clear reasons on why it should not be dismissed. that is what you need to do. Back it up with any evidence you have.How should I handle a motion to dismiss?Lack of proper service is not grounds for dismissal although it is grounds to quash a summons. You still must get proper service, however, and leaving it at the parents home is not enough unless she lives there. 2), the contract is with you, not with the landlord. She contracted with you to pay half the rent and has not properly terminated that contract. 3) failure to minimize damages may reduce a judgment but is not ground for dismissal.How should I handle a motion to dismiss?
Apparently either she feels your case is weak or that the landlord would back her in court. Get an attorney to interview the former roommate and the landlord separately and let him/her file the proper paper and charges for you.How should I handle a motion to dismiss?I wouldn't - I would let my lawyer do it.How should I handle a motion to dismiss?
Give it a rest. Obviously, you weren't thinking with your 'head'.