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REQUEST a DEFAULT JUDGMENT by COURT Ask the Court to Find in Your Favor Because the Other Side Didn’T Respond This Guide Includes Instructions and Sample Forms

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REQUEST a DEFAULT JUDGMENT by COURT Ask the Court to Find in Your Favor Because the Other Side Didn’T Respond This Guide Includes Instructions and Sample Forms Sacramento County Public Law Library & Civil Self Help Center 609 9th St. Sacramento, CA 95814 saclaw.org (916) 874-6012 >> Home >> Law 101 REQUEST A DEFAULT JUDGMENT BY COURT Ask the Court to Find in Your Favor Because the Other Side Didn’t Respond This Guide includes instructions and sample forms. Additional copies of this guide may be downloaded from: Related Step by Step Guides saclaw.org/request-dj-court. • Request a Default Judgment by the Clerk BACKGROUND A defendant has 30 days from the date he or she is personally served with your summons and complaint to file a written response (California Code of Civil Procedure (CCP) § 412.20(a)(3)). The end of the 30 days is not an automatic cut-off; the court will still accept a response from the defendant after 30 days, unless the plaintiff files a request for default. Once a default is entered, the defendant is no longer able to file a response or otherwise participate in the case. When the default is entered, you may also ask the court to enter a judgment in your favor. You must request a default judgment by the court, rather than a default judgment by the clerk, if a judge needs to rule on any issue raised in your complaint. Default judgments by the clerk are available under limited circumstances, such as in a breach of contract case where the monetary amount desired is specified in the complaint. See the Step-by-Step guide on “Request a Default Judgment by the Clerk” on our website at saclaw.org/request-dj-clerk for more information. STEP-BY-STEP INSTRUCTIONS Step 1: Make Sure You’ve Met the Requirements for a Default The defendant has 30 days from the date of personal service to file his or her response. If the defendant was served by substituted service, service is considered complete on the 10th day after the follow-up mailing required to complete substituted service (CCP § 412.20(a)), so, as a practical matter, the default cannot be taken until more than 40 days have passed after this mailing. You must wait until the defendant’s time to respond has passed before you file your request for default. The 30 days starts the day after personal service (or after substituted service is considered complete). If the 30th day falls on a weekend or holiday, the defendant has until the next business day to file a response. You may not file your request for default until the 31st day. If your lawsuit is based upon a retail installment contract subject to the Unruh Act (Civil Code (Civ) § 1812.10), on a financed automobile subject to the Rees-Levering Motor Vehicle Sales and Finance Act (Civ § 2984.4), or on a loan or other extension of credit primarily for personal or Disclaimer: This Guide is intended as general information only. Your case may have factors requiring different procedures or forms. The information and instructions are provided for use in the Sacramento County Superior Court. Please keep in mind that each court may have different requirements. If you need further assistance consult a lawyer. saclaw.org Request a Default Judgment by Court >>Home >>Law 101 household use (CCP § 395(b)), your complaint must provide facts showing that the case has been filed in the proper superior court, and that the case is subject to one of the aforementioned laws. This information should have been provided either as language included in your verified complaint, or in a stand-alone declaration that was filed and served along with your complaint. For these types of cases, if your complaint was not verified, and you did not file and serve a declaration of venue along with your complaint, you must do so now. The court cannot make any orders in this case until one of those two things happens. (CCP § 396a(a)). You can find a sample Declaration of Venue on the Legal Forms page of our website at saclaw.org/forms. The declaration of venue must be served upon the defendants like a Summons – in most cases this means personal service. Service of the declaration of venue resets the defendant’s time to answer, so you must wait another 30 days to allow the defendant to respond before proceeding with the default.(CCP § 396a(a)). Step 2: Decide How You Wish to Proceed Obtaining a default judgment involves two steps: the request for entry of default and the request for entry of court judgment. These steps both use the same form, so it is possible to request both at the same time, or these steps may be done at different times. There are benefits to both methods; you will need to choose the method that best suits your situation. Request for Entry of Default. This request cuts off the defendant’s ability to file a response to the lawsuit. Doing this step alone is useful if you want to prevent the defendant from filing a response, but are not yet ready to provide the court with all the required information and documentation to enter a judgment. You may also want to do this step alone if you have multiple defendants, and you are not yet able to claim a default against some of them (for example, they have not all been served). Request of Entry of Court Judgment. This step may be taken at the same time as your request for entry of default, or at a later date. With this step, you are asking the court to enter a judgment in your favor. Your request includes a declaration that details the evidence that proves why a judgment should be awarded to you. This declaration can be quite long, and very time-consuming to write, which is why many litigants choose to file it separately after they request the entry of default. However, if you are ready to file both steps simultaneously, you will save a trip courthouse, and will get your judgment sooner. Step 3: Complete the Necessary Forms The necessary forms will depend on how you have chosen to proceed. Instructions for completing these forms are included at the end of this packet. If you are asking only for the entry of default at this time you will need: • Request for Entry of Default (CIV-100) If you are requesting only the entry of default at this time, skip to Step 6 after completing this form. 2 saclaw.org/request-dj-court saclaw.org Request a Default Judgment by Court >>Home >>Law 101 If you have already asked for the default, and are now applying for the judgment, OR if you are asking for the default and judgment simultaneously, you will need: • Request for Dismissal (CIV-110) (if you listed any “Doe” defendants in your complaint) • Request for Entry of Default (CIV-100) • Declaration re: Interest (MC-030) (see Step 5 for more information) • Declaration In Support of Application for Default Judgment Pursuant to CCP § 585(b) (see Step 4 for more information) • Judgment (JUD-100) Step 4: Complete Your Declaration in Support of Default Judgment When you apply for your judgment, you must include a declaration in support of your application. CCP § 585(d) provides that the court “may permit the use of affidavits, in lieu of personal testimony, as to all or any part of the evidence or proof required or permitted to be offered, received, or heard… The facts stated in the affidavit or affidavits shall be within the personal knowledge of the affiant and shall be set forth with particularity, and each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto.” You must provide clear and concise evidence of every element in each of your causes of action to prove to the judge why a judgment should be awarded to you. For example, if your cause of action is for negligence, you must prove: • Element 1. That the defendant owed a duty to the plaintiff; • Element 2. That the defendant breached that duty; • Element 3. That you (the plaintiff) were harmed; and • Element 4. That the defendant’s negligence was a substantial factor in causing your harm. The official California Civil Jury Instructions (CACI) provide plain-English explanations of the elements of almost every cause of action. The Legal Resource Guide on Jury Instructions on our website at saclaw.org/jury-instructions describes how to use jury instructions as a checklist for gathering evidence. You may also wish to consult these Law Library resources for information on how to prove the elements of various causes of action: California Causes of Action KFC 1003 .C35 California Elements of an Action KFC 1003 .S74 Electronic Access: On the Law Library’s computers, using WestlawNext. In your declaration, you must also prove the amount of money or other remedies you should be awarded. You must provide the facts and evidence you relied upon when determining the amount you are owed. 3 saclaw.org/request-dj-court saclaw.org Request a Default Judgment by Court >>Home >>Law 101 At the end of this guide is a sample declaration. You may download a customizable template from this link: Attaching Exhibits • Declaration In Support of Application for Default In Sacramento County, the exhibits Judgment Pursuant to CCP § 585(b) in one set of photocopies must be or you may use Declaration (MC-030) and attach separated by a rigid sheet of card Attachment to Judicial Council Form (MC-025), if you need stock with a tab identifying the additional pages. letter of the exhibit on the bottom.
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