Simply put, a default judgment is a judgment against a defendant who fails to answer a lawsuit. If a person or entity is sued and ignores the lawsuit entirely, the person or entity suing has the ability to get a judgment upon meeting certain criteria. The default judgment is a powerful tool in litigation allowing parties to obtain judgments for significant damages without a trial. Because of this, the requirements necessary for obtaining default are substantial. Judges insist on strict adherence to each requirement and routinely reject default packages submitted citing technical deficiencies. These strict requirements are designed to provide defendants due process. On one hand, California law provides wronged parties a mechanism to seek damages where the wrong doer ignores a lawsuit. On the other hand, California law ensures that basic procedures for fairness are in place. Unfortunately, the process is slow and cumbersome especially given how overwhelmed San Diego courts are today. For those who have been served with a lawsuit, the best advice from this lawyer is, “don’t ignore it”. See “Is Your Business Being Sued?” for a discussion of options. This article summarizes California’s default procedures and the options available for setting aside defaults.
Default procedures, like any aspect of litigation, are complicated for lay persons. Whether seeking default or reacting to one entered against you, it is best to consult with and experienced San Diego litigator before taking any steps. This summary of procedures looks deceptively simple. It is not. In addition to strict adherence to procedural rules, the party requesting default may be required to “prove up” their case. This means presenting admissible evidence to the court establishing your legal claims and your damages. The following is a list of prerequisites to obtaining a default judgment:
- Defendant must be served with the summons and complaint. In most cases, defendants must be personally served. However, where a defendant cannot be physically served, service may be accomplished by publication (by obtaining court approval to publish service in a newspaper).
- The time for defendant to answer the complaint (thirty days in most cases) has passed and the defendant has not filed an answer or other responsive pleading to the complaint with the court. In some cases, defendants may get extensions of time to answer and/or respond to the complaint in which case the time to answer is extended accordingly.
- Defendant must be served with a Statement of Damages stating the amount of damages sought. This serves as a final reminder of how much the defendant will be on the hook for if a default judgment is entered against it. The Statement of Damages must be served in the same manner as the summons and complaint.
Once these prerequisites are satisfied, a default judgment may be sought immediately. However, it’s important to consider some practical concerns. Default judgments are time consuming and complicated requiring in most cases a significant amount of attorney time. This can be expensive for most litigants who are paying attorney fees by the hour. This matters because it is common for defendants to move to set aside default judgments (and succeed more often than one might imagine). The decision of when to pull the trigger on seeking default requires a comprehensive analysis of all aspects of each particular case. Your attorney should be happy to discuss whether delaying default is a good idea for your case. Those representing themselves should at the very least consult with an experienced San Diego litigator.
The following are the steps necessary to obtain a default judgment:
- File an Application for Entry of Default which includes:
- Request for Entry of Default (California Judicial Council form CIV-100) with Declaration of Service;
- Proof of Service of the Summons and Complaint on the Defendant;
- The Statement of Damages; and
- Proof of Service of the Statement of Damages on the Defendant.
- Mail serve the defendant the Application for Entry of Default.
- Request a Default Judgment (either via a Clerk’s Judgment or a Court Judgment):
- Clerk’s Judgment. A clerk’s judgment can only be sought under the following circumstances: the case is based on a contract or judgment action; the case only seeks to recover money or damages in a fixed or determinable amount; and the defendant was not served by publication. While a clerk’s judgment is easier than a court judgment it’s important not to underestimate its complexity. Strict adherence to all of the above procedures is required. The default judgment will be rejected for any technical deficiency no matter how innocuous.
- Court Judgment. A court judgment is necessary in all personal injury cases and cases where the defendant is served by publication. Court default judgments are comparable to mini-trials. The plaintiff is required to present admissible evidence to the court supporting its case. Admissible evidence can be testimony in the form of sworn affidavits and documents. The admissibility of documents is beyond the scope of this article. Consultation with an experienced San Diego litigator is advisable. The following items are submitted when requesting a court default judgment: A case summary setting forth the facts of the case; written declarations under oath attesting to the facts of the case; interest computations if you are seeking interest on the judgment; a cost memo setting forth the costs incurred in the case; signed affidavit affirming that the defendant or defendants are not in the military; a proposed judgment; a Request for Dismissal dismissing any other parties from the case including Doe defendants; documentary evidence (exhibits) if any (all documents need to be originals or copies accompanied by an affidavit of authenticity; request for attorney fees if applicable; and proof of publication if the defendant was served by publication.
- The Court will next determine whether a hearing is necessary or the court can render a judgment solely on the submitted papers.
- If the Court requires a hearing, the plaintiff will be required to appear before the judge and present its evidence.
This summary of the default process is designed to provide readers with a basic outline of the process. It is not a comprehensive analysis such that it alone may be used as a guide to seeking default judgments. For more information on obtaining default judgments and/or litigation in general, contact an experienced San Diego litigator.