Monday, 3 August 2015

Obtaining a Default Judgment in California by Declarations

The topic of this article is obtaining a default judgment in California by the use of declarations without having to appear in Court.
Code of Civil Procedure Section 585(d) allows a default judgment to be entered using declarations in lieu of personal testimony. This avoids the time and expense of a Court hearing. In fact in many counties in California this is the preferred method, only in unusual cases will the Court require a "prove-up" hearing. This is particularly true now that the budget crisis in California has resulted in major staffing cutbacks in most Courts.
Note that if punitive damages are requested that some Courts and Judges will require a "prove-up" hearing.
Obviously, a default must be entered against the defendant before a default judgment can be obtained. The default can be requested separately before any default judgment, in some cases this may be helpful as it may take time to obtain the necessary documents and signatures. Judicial Council Form CIV-100 Request for Entry of Default is used to have the default entered, and must also be used to have the default judgment entered as well. The appropriate boxes on the form must be checked, and when a default judgment is requested, the principal amount, the accrued interest, and any court costs and attorney fees must be entered as well.
Next the following documents must also be submitted in support of the request for default judgment.
Judicial Council Form CIV-110 Request for Dismissal to request the dismissal of all fictitiously named or "DOE" defendants. Many Courts will require this before a default judgment will be entered.
Statement of case (also known as summary of case) in support of request for default judgment. This must contain a brief summary of the causes of action against the defendant and the amounts requested for each particular cause of action. This must be prepared on pleading paper.
Declaration regarding calculation of pre-judgment interest. This is required when pre-judgment interest is requested and must detail exactly how the pre-judgment interest has been calculated such as interest rate, yearly interest divided by 365 which equals a daily interest which is then multiplied by the number of days since the breach of contract, or other event. This declaration can also contain the details as to any attorney fees requested that are allowed by contract or statute. If a written contract is involved then Civil Code Section 1717 would apply. In actions based on a book account as defined in Code of Civil Procedure Section 337a entered into on or after January 1, 1987, the statutory attorney fees available under Civil Code Section 1717.5 are available.
Many Courts have a schedule for attorney fees in their local rules such as Los Angeles County Superior Court Local Rule 3.214 which provide the calculation basis for the attorney fees unless the Court orders otherwise. The attorney fees should be calculated by adding the principal amount, the accrued interest, and the Court costs, then using the total figure as a basis for calculating the attorney fees.
Any request for fees in excess of that provided in the local rules would have to be supported by documentation showing the hours spent on the case, and why the excess attorney fees are justified. This declaration must be prepared on pleading paper.
Declaration of plaintiff or cross-complainant in support of request for default judgment. This must contain all the ultimate facts and relevant dates which support the claim or claims against the defendant, and also contain any exhibits in support of the claims. This must also be prepared on pleading paper.
The original of any promissory note or other written obligation to pay money such as a negotiable instrument, if any, upon which the action is brought must be submitted to the Court, either separately or as an exhibit to the declaration. If the original is not available that fact should be noted in the declaration to avoid rejection of the default judgment package.
The court clerk is required to note across the face of the writing, over his official signature, the date and fact that judgment has been rendered on such contract. See California Rule of Court 3.1806.
Proposed default judgment. This must be submitted for signature by the Judge. It should contain all of the relevant amounts such as principal, pre-judgment interest, court costs, any attorney fees that are requested, and also should state the total amount of the judgment. Some Courts may require that a party use the JUD-100 Judicial Council Judgment Form instead of preparing a proposed judgment on pleading paper even though JUD-100 is listed as an optional form.
Plaintiff should make every effort to find out beforehand if any additional forms may be required by local Court rule as some Courts do have specific local forms. A search of the local rules themselves may be of great assistance in that area.

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