Default Judgement

Question 1

McClain v. Kissler

Answer 1

P say D failed to pay them for their work growing marijuana as agreed under a contract between them.

The summons and complaint had been served on D, but D failed to file an answer.

Defendant claims that the court’s order was confusing and misinterpreted it to mean that the court was giving defendant a deadline to file an answer.

Trial court, using its discretion, denied defendants motion to set aside default because the conduct was not excusable (either deliberate or inexcusable)

• The attorney was also the CEO of the Defendant company, and was essentially the Defendant and the Attorney. No mandatory relief for either.

Question 2

When can a court relieve a party from Default Judgement?

Answer 2

The court may, upon any terms as may be just, relieve a party from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.

Mandatory relief NOT available here if you are both lawyer and party (Kissler)

Question 3

473(c) After relief from default judgement is granted

Answer 3

(1) Whenever the court grants relief from a default judgment, the court may do any of the following:

(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.

(C) Grant other relief as is appropriate.

Question 4

What relief may be sought if the opposing party enters default?

Answer 4

If it is a judgement for recovery of money or damages ONLY, then entry of default= money paid to non-defaulting party

For other actions NOT money or damages, then default entered= evidence of damages allowed to be reviewed and judgement entered (not more than was stated in complaint)

Question 5

When is an attorney’s mistake excusable?

Answer 5

In determining whether the attorney’s mistake or inadvertence was excusable, look at whether “a reasonably prudent person under the same or similar circumstances” might have made the same error.”

Mistake is an error anyone could have made.

Conduct falling below the professional standard of care is not excusable.

Question 6

What is Default Judgement

Answer 6

A judgment rendered against a party served with a pleading/claim who fails to file a responsive pleading

Question 7

Timeline for Default Judgement after initial complaint filed

Answer 7

Step 1: Entry of default; Step 2: Default Judgment

• D has 30 days from filing of the complaint to answer
• If they do not, P then has 10 days to ask clerk to enter default; which the clerk must grant
• However, it is P’s burden to enter default (i.e., if P does not do this then D can still answer)
• If this happens, D can no longer participate in the litigation
• Plaintiff then has 45 days to file the motion for default judgement
• Defendant has maximum 6 months to request relief from judgement

Question 8

Analysis for Default Judgement

Answer 8

1. Did defendant fail to file a responsive pleading or make a general appearance?
   - E.g., answers, demurrers, motions (documents that accept the power of the court)
   - D appears when she submits to the court’s power
2. Was the defendant served by summons or publication?
3. Is there grounds for relief? (Mistake, Inadvertence, Surprise, Excusable Neglect)
4. Does the claim arise out of contract or judgment for recovery of damages?
   - If yes, clerk enters default judgement automatically because damages are easy to calculate
   - If no (e.g., injunctive relief), then clerk allows evidence of damages to be admitted