california procedures: chapter 3...

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California Procedures: Chapter 3

Introduction

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Chapter 3:

Default by Defendant

First Read: • Companion Ch. 8

• LBTN Ch. 3 Introduction Unless an extension of time is obtained from opposing counsel (via stipulation) or granted by court order, the defendant has 30 days from the effective date of service of the summons and complaint to plead or otherwise take steps to defend against the action. When the defendant fails


to do so, the plaintiff must start the process to enter the defendant’s default and obtain a default judgment against the defendant, or risk the imposition of sanctions. This chapter discusses the procedures for doing so.


Lecture Notes

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Default involves 2 aspects: (1) entering default to prevent defendant from filing late response; and (2) obtaining default judgment in plaintiff’s favor. Exact procedures and requirements differ among the courts -- good idea to obtain reject sheets and checklists from the court clerk before embarking upon this area. Entering Default Although defendant has 30 days from effective date of service of summons and complaint in which to file a response to the complaint, until default is entered, defendant may file response. Entry of default = notation by the clerk of the court regarding defendant’s failure to appear. Entry of default prevents defendant from filing late response unless and until default is set aside. To do so, defendant must


move court for order setting aside default. (See C.C.P. §§ 473 and 473.5 for grounds and time limitations.) In CA, plaintiff is required to enter defendant’s default w/in 10 days after response was due. If plaintiff does not, court may file order to show cause why sanctions shouldn’t be imposed against the plaintiff. (C.R.C., Rule 3.110(g)) Entry of default must be done by first preparing and serving Request for Entry of Default (Mandatory Judicial Council Form CIV-100) on defendant. Request for Entry of Default is submitted to court clerk. Before clerk will enter default, court file must contain documentation establishing that defendant was served with Summons and Complaint (so defendant’s failure to respond was not due to lack of notice of the lawsuit) and that response deadline has passed. Mandatory Judicial Council form Proof of Service of Summons and Complaint must be in court file to show that summons and complaint were properly served. In personal injury case, proof of service of Statement of Damages must also be filed. (Defendant must be put on notice of magnitude of lawsuit (amount of money sought) before court will enter default.) Seeking Default Judgment After default is entered (or at same time), next step is to seek default judgment. Default judgment = judgment in favor of plaintiff, saying that defendant owes plaintiff specified sum of money. Awarded where defendant fails to respond to complaint. C.R.C., Rule 3.110(h) provides that failure to obtain default judgment within 45 days after entry of default may result in an order to show cause as to why sanctions should not be imposed against the plaintiff. But in Collections Cases, plaintiff has 360 days from filing of complaint to obtain default judgment. Some circumstances allow court clerk to grant default judgment; in other situations, default judgment may only be done by court. (1) By clerk - Default judgment may be entered by the clerk so long as: (1) the case is one arising from a contract or judgment and seeks recovery of money or damages only in a fixed or determinable amount, and (2) the summons was not served by publication. (C.C.P. § 585(a)) For example, if complaint in breach of contract alleges defendant was required to pay $50,000, but only paid $10,000, defendant would owe fixed or determinable


amount: $40,000. Judgment may be entered only for that specific amount -- no additional costs may be added to the claim amount other than what is stated in plaintiff’s complaint. (2) By court - when summons and complaint served by publication, or where amount of damages is not certain and ascertainable from complaint, e.g., personal injury case. Must submit documentation and/or have a "prove-up" hearing, where plaintiff proves to court amount of damages sustained, and therefore amount of judgment which should be awarded. Default judgments may not be entered against defendants in the military, involuntary plaintiffs, or against DOE defendants. Default judgment may only be granted on claims included in the complaint, and is limited to the amount of damages requested in the complaint (or in Statement of Damages) -- notice issues. Court usually requires all DOES and other named defendants to be dismissed before it will enter default judgment against any one defendant. Overturning Defaults Defaults are rarely fatal. Defendant may move to set aside default judgment on following grounds and within the specific time limitations: (1) based on inadvertence, mistake, surprise, or excusable neglect on the part of the defendant within six months after the entry of default, (2) based on an attorney affidavit of fault submitted within six months after entry of judgment, (3) based on lack of notice within two years of the default judgment, or 180 days after the notice, (4) based on fraud or mistake at any time.


Application

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Application #1 You are employed by attorney Sara Livingston, who has just handed you the Smith v. Jones file with a memo, and left the office. The memo explains that Ms. Livingston represents Janet Smith, on whose behalf she filed and served a Complaint in the California state court. The Complaint was for injuries suffered by Janet Smith in an automobile accident involving a car driven by Roberta Jones. Ms. Livingston’s memo states that she thinks the file has fallen through the cracks, and she wants you to see what’s going on in the case, and advise her of anything that needs to be done immediately. Today is February 13, 2013. You pull the file. You find the following:


(1) A file-stamped copy of the Complaint showing that it was filed with the court on November 21, 2012. (2) A file-stamped copy of a Proof of Service of Summons and Complaint (stating that the Summons, Complaint, and clerk's notices) were personally served on defendant Jones on January 9, 2013. (3) Nothing subsequent to the Proof of Service of Summons and Complaint. What do you tell Ms. Livingston must be done, and by what date? Explain. Application #2 Ms. Livingston applauds your work on the assignment after you have filed the Request to Enter Default and served it along with a Statement of Damages. She tells you to put the file away, calendar a tickler to check the file in two months to see whether the defendant has filed a motion to be relieved of the entry of default. What should you tell her?


Application Answers

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Answer to Application #1 Since the complaint was personally served on January 9, 2013, the defendant’s response was due on February 8, 2013 (30 days later). Given that it’s now February 13, 2013, and there is no answer or other responsive pleading in the file, the defendant’s default should be entered. By what date must the Request to Enter Default be filed? C.R.C., Rule 3.110(g)) requires the plaintiff to file a Request to Enter Default within 10 days after the response was due, which would be February 18, 2013 In addition to serving the Request to Enter Default on the defendant, a Statement of Damages should be prepared and served on the Defendant. Why? This is a personal injury case. Therefore, the complaint didn’t set forth a dollar amount in the prayer, and the only way to apprise the defendant of the magnitude of the lawsuit (amount of money being sought)


is by serving a Statement of Damages. The clerk will not enter default in a personal injury or wrongful death case without proof that the Statement of Damages was served. Answer to Application #2 You should tell her that C.R.C., Rule 3.110(h) provides that failure to obtain default judgment within 45 days after entry of default may result in an order to show cause as to why sanctions should not be imposed against the plaintiff. Instead of putting the file away, you should immediately proceed with the steps necessary to obtain a default judgment from the court, including gathering evidence to support the judgment, and setting/requesting a prove-up hearing.


Chapter Review

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1. What determines whether default may be obtained from the court clerk as opposed to the court?

2. What two dates should be calendared upon serving the summons and

complaint? 3. On what grounds may a default judgment be overturned more than two

years after the default judgment was entered? 4. You represent the plaintiff, a credit card company, suing a customer only

for past due amounts on a credit card. You have filed a request to enter default. What key fact must you know before you can calendar the date by which default judgment must be obtained?


Chapter Review Answers

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1. The clerk may only enter default judgment if the case is one arising from a contract or judgment and seeks recovery of money or damages only in a fixed or determinable amount, and (2) the summons was not served by publication. When the summons and complaint were served by publication or in cases where the amount is not certain and ascertainable from the complaint, i.e., is subject to proof of damages, only the court can grant default judgment after the amount of damages is proved.

2. The two dates which should be calendared upon serving the summons and

complaint are: (a) thirty days after the effective date of service as the date the defendant’s response is due; and (b) ten days after the defendant's response is due as the date the Request to Enter Default must be filed.

3. The only grounds for overturning a default judgment more than two

years after the default judgment was entered are fraud and mistake.


4. Before determining the date by which default judgment must be obtained in a case involving collections, you must know the amount of damages alleged in the complaint. If it is a sum stated to be certain not more than $25,000, exclusive of interest and attorneys fees, and none of the exceptions apply, then it is a Rule 3.740 Collections Case, and the default judgment must be obtained within 360 days of filing the complaint. If it is more than $25,000, then it is not a Rule 3.740 Collections Case, in which case default judgment must be obtained within 45 days after entry of default.


Chapter Quiz

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Click here for the Chapter Quiz. This is the tool you will use to evaluate whether you are ready to proceed to the next Chapter.

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