1. After filing an Entry of Default, what is the deadline for OC to move to set aside Entry of Default?
2. Is the necessity of filing of Default Judgment depend on the outcome of the motion to set aside the entry of default?
3. Is a Dismissal of Defendants also need to be filed for other defendants if only one of the defendants failed to answer? If so is it filed together with the Default Judgment?
A request for default judgement generally must be made within 45 days after default is entered. California Rules of Court Rule 3.110 provides:
"When a default is entered, the party who requested the entry of default must obtain a default judgment against the defaulting party within 45 days after the default was entered, unless the court has granted an extension of time. The court may issue an order to show cause why sanctions should not be imposed if that party fails to obtain entry of judgment against a defaulting party or to request an extension of time to apply for a default judgment within that time."
When seeking a default judgment, all Doe defendants and any other defendants must be dismissed if not served.
For more info, see CRC Rule 3.1800:
The deadline for filing a motion to set aside default will vary and depends upon the specific reason for setting aside the default. See Code of Civil Procedure section 473 and section 473.5.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
Real Estate Attorney
1. The deadline for moving to set aside depends on the grounds for doing so. If the defendant argues that the failure to answer was due to some excusable mistake, the deadline is a reasonable time after entry of default, not to exceed 6 months. If the defendant claimed an attorney made an error, reasonable or not, the deadline is 6 months after entry of judgment. If the defendant claims that he was never served, he has a reasonable time after learning of the lawsuit. If the defendant was served by publication or substitute service but never received actual notice of the lawsuit, he has until two years after entry of judgment.
2. A motion to set aside the default will automatically set aside the default judgment. You need not wait for a motion to set aside before asking for a default judgment. There may never be a motion.
3. The court can enter only one judgment, so you should submit a request for dismissal of the other defendants at the same time you seek judgment against the one in default. If the other defendants are real people and not Does, you can just hold off on getting the default judgment until litigation against them is complete. If you do dismiss, be sure you do it without prejudice.
Personal Injury Lawyer
You should review the case with a local lawyer. Do you want to dismiss against the answering defts? If you dismiss, they can move for costs, and possibly atty fees. Who is going to have money to pay you if you win? The defaulting party, or the ones that answered? There are many things to consider before you move forward.