cMzmZYWV62W39eRurf7nuVfkPqKquL5rG: California

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Monday, November 26, 2012

Obtaining a Default Judgment From the Court Clerk in California

The topic of this article is obtaining a clerk's default judgment in the State of California. In the State of California, the court clerk is authorized upon a request by the plaintiff to enter a default judgment against the defendant without a court hearing or judicial action of any kind. However, the power of the court clerk to enter a default judgment is strictly limited by law, and the requirements are very strictly construed.

Entry of a default judgment by the court clerk is authorized only in the following situations: The action is one "arising upon a contract or judgment"; the action seeks recovery of "money or damages only" in a fixed or determinable amount; and defendant was not served by publication.

In unlawful detainer cases, the clerk will enter judgment for possession of the premises immediately upon a proper request by the plaintiff. However, plaintiff must apply to the court for damages or any other relief sought in the complaint including court costs. See Code of Civil Procedure Section 1169.

The first requirement for a clerk's judgment is that the action be one "arising upon a contract or judgment " See Code of Civil Procedure Section 585(a). This includes implied, as well as express, contracts such as actions in quasi-contract as long as the judgment is for a fixed and determinable amount.

The clerk is authorized to enter default judgment in an action based on a judgment rendered in any previous court action, this power is not limited to California judgments. See Code of Civil Procedure Section 585(a).

The recovery sought must be of "money or damages only." This requirement has been construed narrowly by the courts. As a result, in an action based on contract, the amount due must either be fixed in the contract itself, or be determinable by calculation from its terms. If there is any uncertainty as to the amount due, the court clerk has no power to resolve it. Instead, a court judgment will be required.

The court clerk is authorized to enter a default judgment where the amount due can be computed from the contract itself such as: Action on open book account such as running charge account balances, and an action on account stated (statements received and accepted by defendant showing charges and credits to date).

But the court clerk cannot adjudicate the amount due by taking evidence or exercising discretion. Thus, where the amount claimed by plaintiff cannot be computed from the contract itself, the court clerk has no power to enter judgment. A judgment by the court is required certain situations such as an action for an accounting, etc.

In an action on a secured promissory note for $500, where the demand was only $253, without any explanation as to how reduction occurred, a California Court of Appeal ruled that the complaint failed to negate the possibility that the collateral securing the note had not been dealt with or sold.

If the complaint includes a demand for attorney fees, this may affect the clerk's power to enter a default judgment.

If the contract sued upon stipulates the amount of attorney fees recoverable in such action, the clerk is authorized to enter judgment accordingly. For example if the promissory note provides for attorney's fee in an amount equal to 10% of principal and interest due, the court clerk can compute and enter the amount.

But where the contract merely calls for an "attorney's fee as fixed by the court," or a "reasonable attorney's fee," the court clerk has no power to determine the amount as stated by the California Supreme Court.

Courts are authorized to adopt schedules of attorney fees allowable in default cases where a statute or contract authorizes fee awards such as actions on a promissory note containing an attorney fee provision. See California Rule of Court 3.1800(b). Where such fee schedules are in effect, and plaintiff is willing to accept the scheduled fee, the court clerk may include that amount in the default judgment. See Code of Civil Procedure Section 585(a).

If the causes of action joined in a complaint are in fact, separate and distinct, the clerk can enter default judgment on the "contract" or "judgment" cause of action only. Plaintiffs who want judgment on the other cause of action as well will have to obtain a default judgment from the court.

This means that if a complaint joins a cause of action for breach of a construction contract with a cause of action to foreclose a mechanic's lien for work done, the clerk can enter default judgment only on the "contract" cause of action. If the plaintiff wants his mechanic's lien foreclosed, he will have to obtain a court judgment.

But the clerk cannot enter a valid default judgment where the "contract" cause of action is merely an alternative theory for recovery on a claim that otherwise does not qualify for a clerk's default judgment.

For example if the complaint joined a cause of action for "reasonable value" of services rendered with cause of action for "account stated" based on billings for same services, the clerk could not enter a default judgment on the "reasonable value" count because there is no fixed or determinable amount, and the "account stated" claim is merely an alternative theory for recovery, the clerk has no authority to enter default judgment on either count. A court judgment is required.

A 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 clerk. 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.

If the original writing has been lost or destroyed, plaintiff should obtain a declaration to that effect and apply for an ex parte court order directing the court clerk to accept a copy in lieu of the original. Otherwise the clerk cannot enter judgment as the clerk must have the original writing in order to enter a judgment unless the court orders otherwise.

If the action is one to enforce an earlier judgment, a certified copy of that judgment must be provided to the clerk in order for them to enter the judgment.

And where the action is on an open book account, the court clerk may require copies of the bills or invoices, and a declaration negating the existence of any written agreement with the defendant.

And it should also be stressed that if a clerk's judgment is obtained and the clerk awards attorney fees pursuant to the schedule contained in the local rules of the court then plaintiff will not be allowed attorney fees as a cost of enforcing any judgment because the fees were not awarded pursuant to a contract. See Code of Civil Procedure Section 685.040 which states that attorney fees incurred for enforcing a judgment are not included as costs unless the underlying judgment includes an award of attorney fees pursuant to a contract. See also Code of Civil Procedure Section 1033.5(10)(a).

The attorney fees are considered to have been awarded pursuant to the court's schedule. This can prove to be a tactical mistake if the plaintiff is seeking a large judgment and anticipates that enforcement of the judgment will be difficult. In that case, it may be better to obtain a court judgment where a judge can award "reasonable" attorney fees pursuant to a contract.

Plaintiff should make every effort to find out beforehand how long it usually takes to obtain a clerk's default judgment in the court in which their case is pending as some court's take almost as long to enter a clerk's judgment as they do to enter a court judgment. And a party is not required to obtain a clerk's default judgment, even if it would be authorized in a particular case.

If you enjoy this article please tell others about it.

Yours Truly,

Stan Burman

DISCLAIMER:

Please note that the author of this article, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this article is NOT intended to constitute legal advice.

These materials and information contained in this article have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this article is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Any readers should not act upon this information without seeking professional counsel.

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Requirements Imposed on Limited Civil Litigation in the State of California

The topic of this article is a brief discussion of the statutes governing limited civil litigation in California. The statutes governing this are found in Sections 85 through 100 of the Code of Civil Procedure.

Anyone involved in limited civil litigation should carefully read the statutes as the author has worked on numerous cases where the opposing party, including opposing counsel, has propounded an excessive number of discovery requests, and/or has propounded special interrogatories or requests for admission with subparts, for example, a, b, c, d, which are prohibited. Taking this step will avoid situations like the ones just mentioned in which the author prepared objections based on the fact that the discovery requests did not comply with the statutes.

Code of Civil Procedure § 86 lists several different types of cases which are considered limited civil cases. Generally speaking a limited civil case is a civil case in which the principal demand does not exceed $25,000.00, not including attorney's fees, prejudgment interest or costs.

Note that while the demand in most unlawful detainer (eviction) actions does not exceed $25,000.00, that the normal rules that apply to limited civil cases do NOT apply.

And a limited civil action may be withdrawn from the provisions of Sections 85 through 100 of the Code of Civil Procedure on the grounds that it is impractical to prosecute or defend the action within the limitations of its provisions. The request must be made by noticed motion.

The pleadings allowed in limited civil cases are, complaints, answers, cross-complaints, answers to cross-complaints and general demurrers. Special demurrers are not allowed. Motions to strike are only allowed on the ground that the damages or relief sought are not supported by the allegations of the complaint..

The use of discovery questions in limited civil cases is extremely limited as Code of Civil Procedure § 94 imposes a total limit of any combination of 35 discovery requests including interrogatories, requests for admission, requests for production of documents. See said code section for the other limitations imposed such as only one oral or written deposition.

Note that in limited civil cases, form interrogatories count towards the limit of 35, and that Judicial Council Form DISC-004, titled form interrogatories-limited civil cases MUST be used as they do not contain subparts. Use of any other form interrogatories would be grounds for the responding party to object.

However, supplemental interrogatories and supplemental demands to produce documents may still be utilized.

A party may file a motion with the Court to be relieved from the discovery limitations for limited civil cases. They must show the Court that they cannot adequately prosecute or defend the action without the additional discovery.

The parties may also stipulate to additional discovery so anyone contemplating filing such a motion should first contact the opposing counsel or party to determine whether they will agree to stipulate to the additional discovery.

The author sincerely hopes that you have enjoyed this article.

Yours Truly, Stan Burman

Answering an Unlawful Detainer (Eviction) Complaint in California

The topic of this article is a brief discussion of filing an answer to an unlawful detainer (eviction or UD) complaint in California. Specific affirmative defenses will not be outlined in this article issue but will be discussed in more detail in a later article.

Once a tenant has been properly served with the summons and complaint they generally have five (5) calendar days to file their answer with the Court and serve a copy on the plaintiff or their attorney.

Failure to file and serve an answer on time will result in a default being entered against the defendant or defendants. The landlord can then obtain a judgment for possession of the premises very quickly, usually within a few days at most. Therefore, it is vital for a tenant served with an unlawful detainer summons and complaint to answer or otherwise respond within the very short time allowed.

In general, the tenant's response is due within five (5) calendar days after service of the unlawful detainer summons and complaint. The five-day period includes Saturdays and Sundays but excludes other court holidays; however, if the fifth day falls on a Saturday or Sunday, the response deadline is extended to the next court day. However, if the summons and complaint was not personally served, but instead was served by substituted service, meaning a copy was given to someone else residing at the premises, and another copy was mailed to the tenant, or an order to post and mail known as "nail and mail" was issued by the Court, than the response time is extended to fifteen (15) calendar days, again if the last day to answer falls on a Saturday or Sunday, or a court holiday, the deadline is extended to the next court day.

Thus, an answer to the unlawful detainer complaint must be filed within this five-day period unless, before expiration of the five days, the tenant has filed some other authorized responsive pleading that temporarily excuses the duty to answer such as a motion to quash, demurrer, motion to strike, etc.

The filing of a motion to quash, demurrer, motion to strike or other authorized preanswer responsive pleading extends defendant's time to answer the complaint. But the preanswer pleading must itself have been filed within the five-day answer period, absent stipulated or court-granted extension of time.

Where "good cause" is shown such as time needed to obtain filing fees, etc, the court may grant defendant an extension of time to respond.

Like any preanswer response, application for an extension of time to plead must itself be made within the five-day answer period. As soon as the five days are up, plaintiff is entitled to obtain a default entry beating out defendant's subsequently filed application for extension of time. Any extension of time that was granted after the time to answer had expired may be ignored and a default entered.

An application for an extension of time may be made ex parte; a formal noticed motion is not required as the narrow five-day window period does not allow time for a noticed motion under normal procedures.

But some form of informal notice must be given to plaintiff; and defendant's written application must advise the court of the nature of the case and what extensions, if any, have previously been granted, whether by court order or the stipulation of the parties.

Normally, a party seeking an ex parte order in a civil case must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance (absent a showing of exceptional circumstances justifying shorter notice). In unlawful detainer proceedings, however, an ex parte applicant may give shorter notice "provided that the notice given is reasonable." See California Rule of Court 3.1203.

The ex parte application must be accompanied by a declaration stating either (I) that notice was given, including the date, time, manner and name of the party informed, the relief sought, whether opposition is expected and that the applicant informed the opposing party where and when the application would be made; or (ii) that a good faith attempt to inform the opposing party was made but the applicant was unable to do so, (specifying efforts made); or (iii) why notice should not be required.

If the notice in a UD proceeding was provided later than 10:00 a.m. the court date before the ex parte appearance, the declaration must state why the notice given was reasonable. See California Rule of Court 3.1204[c].

The maximum extension is ordinarily 10 days unless plaintiff consents to a longer time or the court otherwise orders for "good cause" shown.

The parties may stipulate to an extension of time for any reason; but a court-ordered extension will lie only for "good cause" shown. Since eviction actions are supposed to be "summary" (speedy) proceedings, courts tend to be quite restrictive in granting extensions of time. A first-round extension is likely to be granted ("good cause" found) only on allegation that no prior extensions have been granted (by court or on party stipulation) and that (I) defendant needs more time to locate an attorney to represent him or her or to acquire the requisite filing fees, or (ii) a consulted attorney needs more time to evaluate the case to determine whether to accept representation of defendant.

Any further extensions of time are uniformly disfavored in UD proceedings.

Defendant's answer must be verified just as the UD complaint must be verified.

Note that while all answering defendants must sign the answer, only one answering defendant needs to verify the answer. An unverified answer is subject to a motion to strike in its entirety; but the motion must be made within 10 days after service of the answer.

The function of the answer is to put the case "at issue" as to all material allegations in the complaint. Therefore, as with any answer to a civil complaint, the unlawful detainer answer should set forth whatever denials and/or affirmative defenses are necessary to controvert the landlord's material allegations.

All material allegations of the complaint that a defendant does not intend to admit must be effectively denied. If they are not denied then they are automatically deemed to be admitted.

Defendant should respond specifically to each and every paragraph in the unlawful detainer complaint by admitting, denying, admitting portions and denying portions, or denying on the basis of lack of information or belief upon which to admit or deny.

As with general civil litigation, defendant's answer should allege applicable affirmative defenses that are not put in issue under a simple denial commonly referred to as "new matter." As a general rule, whatever the defendant tenant bears the burden of proving at trial is "new matter" and thus is in issue only if specifically pleaded in the answer.

It needs to be stressed that allowable affirmative defenses are very limited. Only "issues directly relevant to the ultimate question of possession" and which, if established, would result in the tenant's right to retain possession, may be asserted in defense to an unlawful detainer.

The defendant (tenant) bears the burden of pleading all essential elements of the affirmative defense (or defenses) raised which means that the defenses pleaded must be supported by factual allegations. However, this simply requires "meaningful notice" to the landlord of the scope and extent of the proffered defense, no detailed evidentiary facts are required.

These materials and information contained in this article have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this article is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.