Civil Litigation Legal Topics Litigation Strategy Pretrial Matters

2 Reasons to Go for Defendant’s Default

ThinkstockPhotos-158687666A default occurs when a defendant served with a complaint doesn’t file the appropriate response within the time allowed. CCP §§585–586. After a defendant is in default, a plaintiff may file a request for entry of default and then apply for a default judgment. Here are two practical reasons to seek entry of default and default judgment.

1. Default cuts off the defendant’s ability to respond. Once default has been entered, the defendant’s ability to file an answer, or any motion other than a motion for relief from default, is cut off. In re Marriage of Nurie (2009) 176 CA4th 478, 495 n16. For example, once default is entered, the defendant:

  • Isn’t entitled to notice of trial or to request a trial continuance;
  • May not appear at the hearing to prove up the amount of damages to prevent entry of a default judgment; and
  • May not raise the issue of whether the judge who granted a default judgment was qualified to hear the matter.

But note that, if the plaintiff substantively amends the complaint after obtaining entry of default, the defendant may respond to the amended complaint. CCP §1010. The amended complaint supersedes the original complaint and reopens the default.

2. A default judgment has res judicata effect. Whether entered by the court or the clerk, a default judgment is a judgment on the merits in the plaintiff’s favor and is res judicata as to all issues pleaded in the complaint. Murray v Alaska Airlines, Inc. (2010) 50 C4th 860, 871. By defaulting, the defendant admits the truthfulness of all material allegations of the complaint. Robinson v Early (1967) 248 CA2d 19, 25.

But a default judgment isn’t an admission of matters not raised by the complaint or unnecessary to uphold the judgment. See Mitchell v Jones (1959) 172 CA2d 580, 586. And the defaulting defendant’s admissions can’t be used against other parties to the action. See Taliaferro v Hays (1961) 188 CA2d 235, 236.

If you decide to go for default, keep in mind that you can’t get relief in excess of the amount demanded.

Before you seek entry of default, make sure to review all the procedures and considerations discussed in CEB’s California Civil Procedure Before Trial, chap 38.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

5 replies on “2 Reasons to Go for Defendant’s Default”

If you know that the defendant is represented by counsel, remember that it is actually attorney misconduct to take a default without first warning opposing counsel and giving them a final opportunity to file a responsive pleading. Make sure to paper the file in that event…

And in tort cases, remember that in order to get a default judgment, you must personally serve a statement of damages before requesting entry of default.

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