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By Paul P. Cheng, Esq.
The following analysis is relevant for either Plaintiff or Defendant.
SUMMARY
When you served with court documents, respond to them. Do not ignore them. We have come across so many good cases that go into default, it boggles my mind. In the same vein, if you are the Plaintiff and the person does not respond within the required time period, get the default entered and get the default judgment so that the statutory time period of six months begins to run. Defaults can be overturned during the six months after default if there is: 1) mistake 2) inadvertence 3) surprise or 4) excusable neglect.
WHAT IS A DEFAULT?
A default basically tells the court that a party is not interested in their case. A person has a Constitutional Protected Right to due process before life, liberty, or property is taken away. When one does not answer, if properly served, they are telling the court that they are willing to give away the right to due process.
WHEN DOES A DEFAULT OCCUR?
A default typically occurs 30 days after the Defendant receives the summons and complaint. The time may be extended due to the type of service of process.
WHAT IS THE RESULT OF A DEFAULT?
The result of the default is that a judge will typically allow what the Plaintiff wants to occur. Also, the Defendant will not be able to later come and try to defend the lawsuit.
CAN A DEFAULT JUDGMENT BE OVERTURNED?
Yes, however only under specific situations and usually within six months of the entry of default.
Under Code of Civil Procedure section 473(b), the court has power to relieve a party from default and default judgment six months after default has been entered.
The deadline for filing a Motion for Order Vacating Default and Default Judgment is a reasonable time period, no more than six months after entry. Code Civ. Proc.§ 473(b). Relief from default and the time for moving for relief from a default and default judgment commences to run when the default was entered. Rutan v. Summit Sports, Inc. (1985) 173 Cal. App. 3d 965, 970.
WHAT REQUIREMENTS MUST FIRST BE MET?
The court may relieve a party from a default judgment “upon such terms as may be just from a judgment, dismissal, order or other proceeding taken against him or her through his or her 1) mistake 2) inadvertence 3) surprise or 4) excusable neglect. Code Civ. Proc. §473(b). This includes defaults, the entries of defaults, orders and “Anything done from the commencement to the termination…” Zellerino v. Brown (1991) 235 CA3d 1097, 1105.
IS IT REALLY THAT EASY TO PROVE MISTAKE, INADVERTANCE, SURPRISE OR EXCUSABLE NEGLECT?
Sometimes. Public Policy strongly supports the court to relieve Defendant of the Default Judgment. Public policy favors cases litigated on its merits and disfavors a party who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his or her adversary. Weitz v. Yankosky (1966) 63 Cal. 2d 849, 855 (affirming order setting aside default judgment on grounds of excusable extrinsic mistake); Berri v. Rogero (1914) 168 Cal. 736, 740. (affirming order setting aside default judgment and vacating judgment based on inadvertence, surprise, and excusable neglect.
The Code of Civil Procedure section 473(b), is to be liberally construed to bring about a trial on the merits whenever possible. Davis v. Thayer (1980) 113 Cal. App. 3d 892, 904. If there are any doubts on whether to apply the CCP §473(b), these doubts must be resolved in favor of the party seeking relief. Elston, Supra at 233; McCormick v. Board of Supervisors (1988) 198 Cal. App. 3d 352, 360.
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