|San Diego Education Report
Default and failure to
obtain a default judgment
Legal Guide: How to Enter a Default Judgment in California Personal Injury/Wrongful
...A defendant is “in default” as soon as the defendant fails to file a responsive
pleading (e.g. an Answer or a Demurrer) within the statutory time limit. This means
little until the clerk “enters a default” against the defendant.
Requirements Before You Can Enter a Default:
...(4) Defendant must be served with a Statement of Damages. A statement of
damages (Judicial Council Form Civ-050) lists the amount of monetary damages
that the plaintiff seeks. Personal injury complaints are not allowed to state the
amount of damages sought (to protect defendants from negative publicity) however
the law requires that the plaintiff inform the defendant
of the specific monetary damages sought before a
default can be taken (This serves as a final reminder that the defendant
may be on the hook if they fail to answer, see Greenup v. Rodman (1986) 42 C3d
822, 829). Service must be accomplished in the same manner governing service of
the summons—i.e., pursuant to CCP § 413.10 et seq. [CCP 413.10, CCP 425.11].
Note: There are some pre-1993 cases that say defendant can be served by mail
alone – these are out of date and incorrect.
...[serving the default]...
Procedure For Entering a Default:
(1) Time Limit: 10 days after the time for service has elapsed. If plaintiff waits longer, the court
may enter an Order to Show Cause why sanctions should not be imposed. [CRC 3.110(g)]...
(3) File an Application For Entry of Default. This should contain the following documents:
Request to Entry Default Form (Judicial Council form CIV–100) (including a Declaration of
mailing copies to defendant and defendant’s counsel if known);
Proof of Service of Summons (unless already filed);
Statement of damages and Proof of Service of Statement of Damages.. [CCP § 425.11].
(4) Request A Default In One of Three Ways:
(a) Request a simple entry of defendant’s default (paragraph 1.a.-c.) – Note that
getting a default entered is just the first step in obtaining a default judgement.
(b) Request a clerk’s default judgment (paragraph 1.a.-e.) – In some cases, after
entry of defendant’s default, the court’s clerk is may enter judgment against the
defendant without a court hearing or judicial action of any kind. This is only allowed
when (1) The action is one “arising upon a contract or judgment; and (2) the lawsuit
seeks recovery of “money or damages only” in a fixed or determinable amount; and
(3) defendant was not served by publication. Therefore this option cannot be
used in personal injury cases.
(c) Request a default judgment
hearing by the court (paragraph 1.a.-
e.) – In all personal injury cases..., plaintiff will need a
court judgement. This will require the plaintiff to
“prove up” his case – meaning that the plaintiff will
have to present evidence to the court, the court will
consider the evidence, and then the court will enter a
judgement. See more on this process below. [CCP 585;
(5) Mail a Copy of the Application for Default to Defendant’s Last Known Address –
there is a box on the Request for Entry of Default Judgement that must be filled out
indicating that the attorney is mailing a copy of the Request for Entry of Default to
defendant’s last known address. It is fine to mail the copy to the defendant the
same day the Request is filed with the court.
Plaintiff Applies for Judgment
Obtaining a Court Judgement
Step 1: Submit the Proper Documentation. [CCP 585; CRC 3.1800]
(1) Case summary: Include the facts of the case, the parties, and the plaintiff’s
claims/injuries. [CRC 3.1800 (a)(1)]
(2) Declarations: A declaration, sword under oath, or other admissible evidence in
support of the judgment requested. [CRC 3.1800(a)(2)]
(3) Interest computations: If you are asking for interest on the judgement, you need
to show how you calculated it. [CRC 3.1800(a)(3)]
(4) Costs memo: What costs has the lawyer expended on the case so far. Use
Paragraph 7 of the Judicial Council form CIV-100 for this. [CRC 3.1800(a)(4)].
(5) Affidavit re military service: State that defendants are not in the military. Use
Paragraph 8 of the Judicial Council form CIV-100 for this.[CRC 3.1800(a) (5)].
(6) Proposed judgment: A proposed form of judgment. [CRC 3.1800(a)(6)].
(7) Dismissal of Other Parties or Applications for Seperate Judgement – If there are
other parties to the case, either request that they are dismissed, or request a
separate judgement against them. [ CCP 579, CRC 3.1800(a)(7)].
(8) Exhibits - Exhibits as necessary. [CRC 3.1800(a)(8)]. Note: If you are using
photocopies, you may need a declaration to authenticate the records.
(9) Request for attorney fees if allowed by statute or by the agreement of
the parties. Note: Check with the court whether it has established a fee
schedule for default judgements. Many courts have established a
schedule of fees.
(10) Proof of publication (In cases where defendant was served via publication): An
affidavit by the newspaper publisher showing the dates on which summons was
Step 2: Hearing Date is Set by Court Clerk.
Upon receiving the above documents, the court clerk may set the matter for hearing
before a judge. In some counties the plaintiff has to call the court to find out when
and where the hearing will be. Check with the local court as to their procedures. In
some counties the clerk simply gives the papers to the judge, and the judge then
decides whether he or she can render judgement on the submitted papers, or
whether a live “prove up” hearing is required.
Step 3: Prove Up The Damages
Whether done by declarations or by a live hearing, the plaintiff will have to prove up
their damages be submitting evidence of the extent of their damages. The judge
acts as gatekeeper to make sure that a reasonable judgement is entered. Check
with the local court as to whether the judge prefers live testimony or
declarations/affidavits. [CCP 585].
Time Limit for Entering a Default:
...Effect of Entry of Default:
If a default is successfully entered by a plaintiff, it instantly cuts off a
defendant’s right to appear in the case. In other words, the plaintiff wins the
case, and the defendant is not allowed to make any arguments on the merits of the
case. The defendant may however move the court to set aside the default and
allow an answer.
While in default Defendant has NO RIGHT to appear at prove-up hearing.
[Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 CA3d 381].
Defendant’s Remedies to Default:
A defendant that had been defaulted against has two
options, he may
(1) Request the court set aside the default, or
(2) appeal the default.
This page is not legal advice, and there is no guarantee that this information is up
to date. If you need legal advice, you should contact a lawyer.
This page was created by and (c) Noah Schwinghamer, a Sacramento Injury
New York. CVP. LAW § 3215 : NY Code - Section 3215: Default judgment
1(a) When a plaintiff has failed to proceed to trial of an
action reached and called for trial, or when the court orders a
dismissal for any other neglect to proceed, the defendant may make
application to the clerk within one year after the default and the
clerk, upon submission of the requisite proof, shall enter judgment for
costs. Where the case is not one in which the clerk can enter judgment,
the plaintiff shall apply to the court for judgment.
(c) Default not entered within one year. If the plaintiff fails to
take proceedings for the entry of judgment within one year after the
default, the court shall not enter judgment but shall dismiss the
complaint as abandoned, without costs, upon its own initiative or on
motion, unless sufficient cause is shown why the complaint should not be
dismissed. A motion by the defendant under this subdivision does not
constitute an appearance in the action.
2. Where an application for judgment must be made to the court, the
defendant who has failed to appear may serve on the plaintiff at any
time before the motion for judgment is heard a written demand for notice
of any reference or assessment by a jury which may be granted on the
motion. Such a demand does not constitute an appearance in the action.
Thereupon at least five days' notice of the time and place of the
reference or assessment by a jury shall be given to the defendant by
service on the person whose name is subscribed to the demand, in the
manner prescribed for service of papers generally.
the court set the matter for an order to show cause hearing. The order
to show cause was based on plaintiff's failure to file a request for entry
of default judgment as required by California Rules of
Court, rule 3.740(f).3
2013 California Rules of Court
Rule 3.740. Collections cases
(f) Effect of failure to obtain default judgment within required time
If proofs of service of the complaint are filed or service by publication
is made and defendants do not file responsive pleadings, the plaintiff
must obtain a default judgment within 360 days after the filing of the
complaint. If the plaintiff has not obtained a default judgment by that
time, the court must issue an order to show cause why reasonable
monetary sanctions should not be imposed. The order to show cause
must be vacated if the plaintiff obtains a default judgment at least 10
court days before the order to show cause hearing.
Judgments by default
are not favored by the
courts nor are they in
the interest of Justice
and fair play. No one has an
inalienable or constitutional
right to a judgment by default
without a hearing on the merits.
The courts, in the interest of
Justice and fair play, favor,
where possible, a full and
complete opportunity for a
hearing on the merits of every
Only void judgments can
be set aside, the court's
equity power to grant relief
differs from its power
under section 473,
Next, Talley filed a motion requesting that this court dismiss the
appeals, claiming they had been taken from nonappealable orders.
The Group of Five Appellants opposed the motion to dismiss,
successfully arguing the special orders made after judgment were
appealable under section 904.1, subdivision (a)(2). In our order, we
granted judicial notice requests by Talley and one of the Group of
Five Appellants, Valuation, regarding orders in connection with the
federal court proceedings and appeal, including the modified Bar
orders and other history. We then issued an order denying the
motion, and now reach the merits.
PRINCIPLES FOR REVIEW
A. Statutory and Inherent Powers of Court
We first limit the scope of the issues before us. We agree with the
reasoning of the trial court, insofar as it concluded that the
dismissal orders were neither void nor voidable, under section
473, subdivision (d). The court went on, however, to attempt to
justify vacating the dismissals on other grounds, based on
Restatement analysis. (Grain Dealers, supra, 200 Cal.App.3d at pp.
Whatever the basis for the ruling, our standard of review for
examining the validity of the trial court's procedural analysis is
clearly de novo. Even though "[t]he inclusion of the word 'may' in
the language of section 473, subdivision (d) makes it clear that a
trial court retains discretion to grant or deny a motion to set aside
a void judgment," the foundational question remains on whether
the dismissals were in some other respect void or voidable. (Cruz
v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495–496.) "A
trial court has no statutory power under section 473,
subdivision (d) to set aside a judgment that is not
void: Once six months have
elapsed since the entry of
a judgment, 'a trial court
may grant a motion to set
aside that judgment as
void only if the judgment is
void on its face.' [Citation.] We review de
novo a trial court's determination that a judgment is void." (Cruz,
supra, at pp. 495–496; Ghirardo v. Antonioli (1994) 8 Cal.4th 791,
We therefore reject Talley's claim that a pure abuse of discretion
standard somehow applies, under which the trial court was free to
interpret our prior opinion, or evaluate the effect of the federal
appellate proceedings, without regard to the current procedural
posture of the case as of the time of the ruling.
Rather, to the extent that Talley seeks equitable relief
from judgment, such a basis for vacating
a dismissal is more restrictive than the
statutory grounds of section 473. In Carroll v.
Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 901, footnote 8
(Carroll), the Supreme Court relied on Weitz v. Yankosky (1966) 63
Cal.2d 849, 857, to say, " 'To the extent that the court's equity
power to grant relief differs from its power under section 473, the
equity power must be considered narrower, not wider.' "
For example, a stronger showing of the excusable
nature of neglect is required to obtain relief under a
court's equity power, than would be necessary for
relief under section 473. (Carroll, supra, at p. 901, fn. 8.)
Void Judgments (CCP 473(d)):
The court may, on its own motion or the motion of either party, set aside
any void judgment or order. A judgment or order may be
void if the issuing court lacked subject matter
jurisdiction over the action, personal
jurisdiction over the defendant, if the
judgment or order granted relief that the
court had no power to grant, or if the
judgment was procured by
fraud on the court.
Although there are numerous ways in which a judgment may be void, a
common way default judgments are found to be void is if the judgment
was obtained after improper or fraudulent service, resulting in a lack of
personal jurisdiction over the defendant.
A judgment may be void on its face if review of the court file
reveals that the judgment was improperly entered, for example, if
a default judgment is entered against a defendant less before 30
days have lapsed since the date of service shown on the Proof of
Service of Summons. A judgment may be void in fact if the
judgment appears to be properly entered in the court file, but
evidence shows that the judgment was improperly entered, for
example, if a defendant can establish that the Summons was
A judgment void on its face is subject to set aside at any time, (see
Nagel v. P & M Distributors, Inc., 273 Cal. App. 2d 176 (1969)), however
courts typically require that a motion to set aside a judgment that is void
in fact to be filed within a reasonable period of time. In determining the
outer limits of what constitutes a reasonable time, courts have referred by
analogy to statutory limitation periods. Some courts have applied the
six-month period applicable to motions under CCP § 473(b) (see, e.g.,
Wells Fargo & Co. v. City etc. of S.F., 25 Cal. 2d 37 (1944)). Other courts
have applied the two-year or 180-day period applicable to motions under
CCP § 473.5, particularly when the judgment or order is void in fact due
to an extrinsic defect in service (see, e.g., Rogers v. Silverman, 216 Cal.
App. 3d 1114 (1989)). Given the wide discretion of the court and the lack
of consensus of what constitutes a reasonable period of time, it is typically
best to promptly file any motion seeking to set aside a void judgment.
After you have served a Statement of Damages
Once a default or default judgment is entered you will want to be
aware of the two types of relief available to defendants under CCP § 473,
and the two separate time limits that start to run at each event.
As to all discretionary relief under § 473 (not
just for defaults) a
motion “must be made within a
reasonable time” and before the
absolute limit of six months
from default entry.
The limit is jurisdictional in the
sense that the court has no power to grant any discretionary relief
irrespective of whether an “attorney affidavit of fault” (5:292 ff.) is filed or
how reasonable the excuse for the delay.
Davis v. Thayer
Cal.App.3d 892, 901 [”six months” means 182 days.]
The six-month limit
for discretionary relief runs from the date the clerk entered the
original default, not the date on which default judgment is
Thus, any delay
between entry of the default and obtaining the default judgment will not
extend the defendant’s time to seek discretionary relief under § 473(b).
Rutan v. Summit Sports, Inc.
(1985) 173 Cal.App.3d 965, 970.
Relief from a default judgment is a
Relief may be granted from the
judgment only—for example, leaving
the default in effect if
for reasons other than default by
The time limit for that relief
runs from the date of the default
judgment and can only reach
the default on one condition not
here present, to which we turn
Stays on appeal
One of the most commonly asked questions is whether a judgment or
order is still in effect once an appeal has been filed or whether it is “on
hold.” The answer is that “it depends.”
The default rule under California law is that the filing of a notice of
appeal stays a judgment or order automatically. However, there are
significant exceptions, which together seem to swallow up the rule.
Perhaps the biggest of these involves money judgments. A
money judgment is not stayed on
appeal (unless the money is only
for costs and attorney fees). In
order to stay it, the party who was
unsuccessful at trial needs to
post a bond or other form of undertaking. The bond must
be for 1.5 times the amount of the judgment. Although it is theoretically
possible to seek a waiver of the bond requirement, these are very
Bonds can also stay other types of judgments or orders where the stay
is not automatic. There, the size of the bond is normally set by the trial
Sometimes, there are gray areas as to whether a particular order falls
into a category where the stay is or is not automatic. This is another
example of where the early involvement of an appellate specialist can
Rule 8.104 of the California Rules of Court defines what it terms the
“normal” deadline in state court as the earliest of:
(1) 60 days after the superior court clerk mails the party filing the notice
of appeal a document entitled “Notice of Entry” of judgment or a file-
stamped copy of the judgment, showing the date either was mailed;
(2) 60 days after the party filing the notice of appeal
serves or is served by a party with a document
entitled “Notice of Entry” of judgment or a file-
stamped copy of the judgment, accompanied by
proof of service; or
(3) 180 days after entry of judgment.
With federal appeals, a litigant is usually up against a 30-day clock to
file the notice of appeal — although it is not always intuitive as to when
that clock starts.
A notice of appeal is a surprisingly simple document. In state court, it is
often filed using a simple one-page form.
The notice of appeal does not need to include a statement of the
grounds for the appeal. What it does
need to do is to identify
each appealable order or
judgment being appealed.
You do not have to list all the preliminary
orders you may want to challenge
leading up to that appealable order if
they were not themselves appealable in
their own right. For example, a decision
to exclude a piece of evidence would not
be appealable in its own right.
This doesn’t mean that you
can’t argue to the Court of
Appeal about it. It simply means
that you don’t have to identify it in the
notice of appeal