Written by attorney Jeanne Marie Collachia

A Default Judgment -- Do Not Let This Happen to You!

  • A Civil Judgment

I am an attorney who does civil appeals. Appellate work requires intensive and extensive legal research. Therefore, each year I read hundreds and hundreds of opinions (both published and unpublished) written by courts of appeal. In each of these opinions the court tells a story. The parties to the lawsuit got involved in some nasty, ugly dispute. The plaintiff sued the defendant. Sometimes the defendant turned around and counter-sued the plaintiff. Eventually somebody won. Somebody lost. And somebody has a judgment entered against him or her. The loser owes the winner lots of money, plus 10% interest each year on the uncollected portion of the judgment. (Where else can you get 10% interest these days?) Of all these judgments, I believe the worst are default judgments. Would-be clients sometimes call me who have a default judgment entered against them. As an appellate attorney, there is very little that I can do to help a person in this situation.

  • The Complaint

When someone believes that some other person or entity has wronged him, and the law provides a remedy for this wrong, this person goes to the court and files a “complaint" naming that person whom he believes wronged him as the defendant. The complaint is served on the defendant. Remember, all someone has to do to file a complaint is draft the document, go to court, shove the document under the window, and pay the filing fee. (If the complaint has no legal merit whatsoever it could be subject to a demurrer or various other methods of knocking a complaint off the court docket – but demurrers etc. are a subject for a separate legal guide.)

  • The Answer

The complaint is served on the defendant. The defendant must file an “answer" to the complaint in the court. The answer tells the court that the defendant disputes some or all of the allegations in the complaint. Imagine a situation where the defendant has been served with a complaint. He reads the complaint and exclaims, “This is the biggest pile of horse manure that I have ever read in my life." (Or maybe, he says something far more colorful that violates Avvo’s publication standards.) He files the complaint in the trash because he thinks, “That’s where this --- belongs!"

  • Default

Thirty days pass. Because the defendant has not filed an answer to the complaint, the plaintiff goes to court and asks the court to enter the defendant’s default. Then, he asks the court to enter a default judgment against the defendant. The plaintiff now has a judgment – a legal document that is like a deed or any other legal document that evidences entitlement to property. The plaintiff can and will enforce this judgment by garnishing the defendant’s wages, filing liens against the defendant’s property, etc. The only way the defendant can avoid paying this judgment is to file bankruptcy, and eventually get a discharge from the bankruptcy court. The defendant may or may not be able to discharge this debt in bankruptcy court. (Bankruptcy is a complicated subject best explained by a bankruptcy attorney.)

  • Default Judgment

I have read numerous opinions where defendants have had default judgments entered against them. In many of these cases these default judgments were for millions of dollars. What were these people thinking??? At some point these hapless defendants had been put on notice that a plaintiff filed a complaint seeking millions of dollars from them, and they never answered the complaint. Why??? I really do not know. Nobody is blasé about millions of dollars.

In the words of the law, “a default confesses the allegations in the complaint." This means that if you are served with a complaint and you do not file an answer, your failure to file an answer is, as far as the law is concerned, exactly the same as if you went to court, raised your hand, swore to tell the truth, and testified. “Everything that the plaintiff said about me in that complaint is 100% true. I did everything exactly as he describes in the complaint. The plaintiff is entitled to every penny from me that he is asking for in the complaint." If there is a default judgment entered against you it is as if someone cut off your arm. It’s not going to grow back.

  • Do Not Think That You Can Evade Service. You Can't.

The only reason that I can think of as to why some people fail to answer a complaint is that they have the mistaken belief that they can evade service. NEVER TRY TO EVADE SERVICE. If the plaintiff is not able to serve you personally, he will simply ask the court for permission to serve you by publication. The plaintiff may have served you by leaving the complaint with some adult. That adult could be your tenant -- or someone who barely knows who you are, or who has a very casual relationship with you. This is substitute service, and it is perfectly valid, legal service. Play it safe. If you think you might possibly have been served, assume that you have been served.

  • Answer the Complaint

ANSWER THE COMPLAINT. What if you have not been served, but the process server filed a declaration stating under penalty of perjury that he served you? How do you prove you were not served? There was one opinion I read where the process server claimed to have served the defendant. The defendant was able prove that he was not served because he was in prison at the time. If you are in prison it is really easy to prove where you were at any given time on any given date. It is not so easy for the rest of us. If you know of the lawsuit ANSWER THE COMPLAINT.

The California Summons, Judicial Council Form, SUM-100, states: “If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court." THIS LANGUAGE IS FAR TOO WEAK. The Judicial Counci Forms are written by people who have been trained as lawyers. Lawyers never want to really say anything. Lawyers are taught to be cautious. If you never say anything, you will never be wrong. You may win the lottery. The world might come to an end tomorrow. However, even though it may not happen -- because who knows what the plaintiff will actually do -- assume that this nasty plaintiff who is suing you is counting the days until he can take your default. And he WILL take your default; he WILL get a default judgment against you; and he WILL take your wages, money, and property. And this plaintiff will do all this with the assistance of the court.

  • It is Unlikely That You Will Be Able to Get a Default Judgment Vacated.

Once a default judgment has been entered against someone the only way to rectify the situation is to have the default set aside and the default judgment vacated. In California there is section 473 of the Code of Civil Procedure, which is the authority that allows someone to get a default set aside and the resulting judgment vacated. Setting aside a default and vacating a judgment is outside the scope of this legal guide. However, do not count on being able to successfully do this. Courts are very reluctant to set aside judgments. Do not think that courts are like consumer institutions where you can return something if you do not like it. No matter what the reason, judgments are set aside only in the rarest of circumstances.

  • If You Have No Resources File a General Denial.

What can you do if someone serves you with a complaint and you do not have the money to hire a lawyer? Beg or borrow the money. (I can’t say “steal the money" in a legal guide.) Go to Legal Aid, Public Counsel, or some other pro bono legal firm. If, within the 30 day deadline to file an answer to the complaint, you cannot get any money together, and you cannot get help in any other way, then file a General Denial. Search for California Courts Forms and find form PLD -050. Later, you can ask the court to amend your answer. However, if the complaint is “verified" – meaning that it was signed under penalty of perjury – you cannot file a General Denial. You must file a verified answer.

I hope that you are reading this in time to protect your rights. Do not walk. Run to the court and file your answer to the complaint!

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