Obtaining the Entry of Default
This Article discusses the ins and outs of the Entry of Default, as well as, the two key procedural events in a default proceeding: (1) the entry of default; and (2) the default judgment. The process for obtaining a Default Judgment will be discussed in a subsequent article.
What is the Difference between the Entry of Default and a Default Judgment?The entry of default cuts off a Defendant’s right to answer or respond to the complaint and requires a Defendant to move the court before taking any other action. A Defendant cannot take further steps in the cause affecting a Plaintiff’s right of action until a motion to set aside the Default has been granted.
If a Plaintiff obtains a default judgment, the court awards the Plaintiff the relief requested in the complaint and conclusively establishes the truth of material allegations in the complaint.
Therefore, a Plaintiff is unable to obtain the requested relief in the complaint solely on the basis of the court entering default.
When to use the Entry of Default and Default Judgment?A Plaintiff can utilize the Entry of Default and a Default Judgment in two instances.
The first instance is when a Defendant fails to timely answer or respond to a complaint or an amended complaint. However, there are two exceptions to keep in mind: (1) this instance only applies to certain types of “actions” which are set forth in CCP §§ 307-1062.20; and (2) this instance does not apply where there is a specific statute that bars the Entry of Default. This first instance is further discussed in the section titled “What are the Grounds for Entry of Default?”
Additionally, the Entry of Default and a Default Judgment can be used as a sanction for misuse of the discovery process or delay in prosecuting a case. CCP § 2023.030; Gov. Code § 68608(b).
How Does a Plaintiff Obtain an Entry of Default?A Plaintiff does not obtain an Entry of Default without taking affirmative steps, e.g., filing and serving an application for Entry of Default. CCP § 585; Cal. Rules of Ct., Rule 3.1800(a). A Plaintiff must use the Judicial Council Form CIV-100 or the Judicial Council Form CIV-105 if the cause of action is subject to the Fair Debt Buying Practices Act.
The court clerk has the duty to Enter Default. However, the clerk has no authority to Enter Default if there is a question concerning the sufficiency of the pleading, e.g., the complaint. If the court clerk refuses to Enter Default, a Plaintiff may petition for a writ of mandate.
It is important to always pay attention to statutes utilizing “must” or “may.” For example, the court clerk must Enter Default if a Plaintiff files a proof of service by publication and a Defendant’s time for answering has expired.
Additionally, a Plaintiff must keep in mind that they must promptly move to take Default according to the local court rules, e.g., Los Angeles Super. Ct. Rules, Rule 7.7(a)(4).
What are the Grounds for Entry of Default?The grounds for Entry of Default include the following: (1) the Defendant fails to answer; (2) the Defendant fails to amend their answer; and (3) the Defendant completely fails to respond.
A Plaintiff can Enter Default based on the first ground when the Defendant fails to answer: (1) the complaint; (2) the amended complaint; (3) after the court denies a motion to strike; (4) after the court strikes a portion or portions of the complaint; (5) after the court denies a motion to quash or stay; and (6) after the court overrules a demurrer.
The second ground may be utilized when the Defendant fails to amend his/her answer: (1) after the court sustains a demurrer to his/her answer; and (2) after the court strikes his/her answer with leave to amend.
Lastly, a Plaintiff can Enter Default if the Defendant completely fails to respond: (1) after the court acts on a motion to transfer; and (2) to the court’s motion to dismiss for Plaintiff’s failure to properly serve a Defendant under CCP § 583.250.
Interestingly, if a Defendant files an untimely pleading prior to a Plaintiff Entering Default, the Plaintiff is considered to have granted additional time for the Defendant to respond. Goddard v. Pollock (1974) 37 CA3d 137, 141. If this occurs, the Plaintiff should immediately file a motion to strike the Defendant’s untimely pleading. If granted, the Plaintiff should then request the Entry of Default. Id.
How Does a Plaintiff Comply with Due Process?An often-overlooked prerequisite to the Entry of Default is a Plaintiff’s compliance with the due process requirements of notifying a Defendant of the amount of potential damages and giving the Defendant an opportunity to Defend.
In a Default proceeding, a Plaintiff is limited to recovery of the amount of damages demanded in the complaint. Surprisingly, a Plaintiff’s response to the Defendant’s request for a statement of damages does not substitute for stating the amount of damages sought within the complaint.
It is also important to note that if there is no amount of damages specified in a limited civil case, any and all judgments are void in their entirety.
If punitive damages are sought, a Plaintiff must serve a statement of punitive damages within a reasonable time before the Entry of Default against the Defendant if the Motion for Default includes a request for punitive damages. CCP § 425.115(f). This statement simply preserves a Plaintiff’s right to seek punitive damages. If and when the Defendant appears in the action, Plaintiff will not be limited to the amount sought in the statement of punitive damages.
Lastly, there are two types of cases which a Plaintiff must serve a statement of damages before Default may be taken. This requirement is for personal injury or wrongful death actions. Any judgment entered in one of these actions without a statement of damages is void.
It is important to note that when a statement of damages or punitive damages is required, it is prudent of a Plaintiff to serve the Defendant at the same time he/she is served with the complaint. If this is done, as soon as the deadline to respond expires, Default can be entered.
What is the Effect of the Entry of Default?Upon the failure of the Defendant to answer the complaint within the time allowed by law, and upon the Entry of Default, in the absence of fraud, the right of the Defendant to participate in the litigation is terminated. Forbes v. Cameron Petroleums, Inc. (1978) 83 Cal.App.3d 257, 262. Any subsequent filing of an answer or demurrer on the Defendant’s part is void, unless the Default has been set aside by the court. Id. at 263.
In addition to the termination of the Defendant’s right to participate in the litigation, the truth of all material allegations within the complaint are deemed admitted and the Defendant is no longer entitled to service of papers involved in the litigation.
It is critical that the Defendant be aware of his/her deadline to respond to the complaint, because a Plaintiff does not have a duty to provide the Defendant with notice of any Default hearing. A Plaintiff could completely pull the rug out from under the Defendant.
Can a Plaintiff Waive Default?The Entry of Default may be waived by a joint stipulation between all parties to waive or set aside the Default. CCP §§ 585, 586. Additionally, the California Court of Appeal held that the Entry of Default may be waived if a Plaintiff amends the complaint after the Entry of Default, the amendment is substantive, and the amended complaint is personally served on the Defendant. Jackson v. Bank of Am. (1986) 188 CA3d 375, 387-389. If this situation occurs, the Defendant then has the right to answer or demur to the new amendment.
However, keep in mind that a Plaintiff’s failure to obtain Judgment on the Default (as discussed in a subsequent article) does not automatically waive Default.
ConclusionOnce again, keep in mind that this Article only discussed the ins and outs of obtaining an Entry of Default. As stated in the opening section of this Article, obtaining a Default Judgment is an entirely distinct procedure, and therefore, will be discussed in a subsequent article.