Request a Default Judgment by Court Step by Step Guide

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REQUEST A DEFAULT JUDGMENT BY COURT

Ask the Court to Find in Your Favor Because the Other Side Didn’t Respond

This Guide includes instructions and sample forms. The Guide and related forms may be downloaded from: www.saclaw.org/request-dj-court.

More like this… Related Step by Step Guide • Request a Default Judgment by the Clerk

BACKGROUND A defendant has 30 days from the date he or she is personally served with your summons and complaint to file a written response (California Code of Civil Procedure (CCP) § 412.20(a)(3)). The end of the 30 days is not an automatic cut-off; the court will still accept a response from the defendant after 30 days, unless the plaintiff files a request for default. Once a default is entered, the defendant is no longer able to file a response or otherwise participate in the case. When the default is entered, you may also ask the court to enter a judgment in your favor. You must request a default judgment by the court, rather than a default judgment by the clerk, if a judge needs to rule on any issue raised in your complaint. Default judgments by the clerk are available under limited circumstances, such as in a breach of contract case where the monetary amount desired is specified in the complaint. See the Step-by-Step guide on “Request a Default Judgment by the Clerk” on our website at www.saclaw.org/request-dj-clerk for more information.

STEP-BY-STEP INSTRUCTIONS Step 1: Make Sure You’ve Met the Requirements for a Default The defendant has 30 days from the date of personal service to file his or her response. If the defendant was served by substituted service, service is considered complete on the 10th day after the follow-up mailing required to complete substituted service (CCP § 412.20(a)), so, as a practical matter, the default cannot be taken until more than 40 days have passed after this mailing. You must wait until the defendant’s time to respond has passed before you file your request for default. The 30 days starts the day after personal service (or after substituted service is considered complete). If the 30th day falls on a weekend or holiday, the defendant has until the next business day to file a response. You may not file your request for default until the 31st day. Disclaimer: This Guide is intended as general information only. Your case may have factors requiring different procedures or forms. The information and instructions are provided for use in the Sacramento County Superior Court. Please keep in mind that each court may have different requirements. If you need further assistance consult a lawyer.

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>>Home >>Law 101 If your lawsuit is based upon a retail installment contract subject to the Unruh Act (Civil Code (Civ) § 1812.10), on a financed automobile subject to the Rees-Levering Motor Vehicle Sales and Finance Act (Civ § 2984.4), or on a loan or other extension of credit primarily for personal or household use (CCP § 395(b)), your complaint must provide facts showing that the case has been filed in the proper superior court, and that the case is subject to one of the aforementioned laws. This information should have been provided either as language included in your verified complaint, or in a stand-alone declaration that was filed and served along with your complaint. For these types of cases, if your complaint was not verified, and you did not file and serve a declaration of venue along with your complaint, you must do so now. The court cannot make any orders in this case until one of those two things happens. (CCP § 396a(a)). You can find a sample Declaration of Venue on the Legal Forms page of our website at www.saclaw.org/forms. The declaration of venue must be served upon the defendants like a Summons – in most cases this means personal service. Service of the declaration of venue resets the defendant’s time to answer, so you must wait another 30 days to allow the defendant to respond before proceeding with the default.(CCP § 396a(a)).

Step 2: Decide How You Wish to Proceed Obtaining a default judgment involves two steps: the request for entry of default and the request for entry of court judgment. These steps both use the same form, so it is possible to request both at the same time, or these steps may be done at different times. There are benefits to both methods; you will need to choose the method that best suits your situation. Request for Entry of Default. This request cuts off the defendant’s ability to file a response to the lawsuit. Doing this step alone is useful if you want to prevent the defendant from filing a response, but are not yet ready to provide the court with all the required information and documentation to enter a judgment. You may also want to do this step alone if you have multiple defendants, and you are not yet able to claim a default against some of them (for example, they have not all been served). Request of Entry of Court Judgment. This step may be taken at the same time as your request for entry of default, or at a later date. With this step, you are asking the court to enter a judgment in your favor. Your request includes a declaration that details the evidence that proves why a judgment should be awarded to you. This declaration can be quite long, and very time-consuming to write, which is why many litigants choose to file it separately after they request the entry of default. However, if you are ready to file both steps simultaneously, you will save a trip courthouse, and will get your judgment sooner.

Step 3: Complete the Necessary Forms The necessary forms will depend on how you’ve chosen to proceed. Instructions for completing these forms are included at the end of this packet. If you are requesting only the If you are asking only for the entry of default at this time you will entry of default, skip to Step 6 need: after completing this form. • Request for Entry of Default (CIV-100) 2 www.saclaw.org/request-dj-court

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>>Home >>Law 101 If you have already asked for the default, and are now applying for the judgment, OR if you are asking for the default and judgment simultaneously, you will need: • Request for Dismissal (CIV-110) (if you listed any “Doe” defendants in your complaint) • Request for Entry of Default (CIV-100) • Declaration re: Interest (MC-030) (see Step 5 for more information) • Declaration In Support of Application for Default Judgment Pursuant to CCP §585(b) (see Step 4 for more information) • Judgment (JUD-100)

Step 4: Complete Your Declaration in Support of Default Judgment When you apply for your judgment, you must include a declaration in support of your application. CCP § 585(d) provides that the court “may permit the use of affidavits, in lieu of personal testimony, as to all or any part of the evidence or proof required or permitted to be offered, received, or heard… The facts stated in the affidavit or affidavits shall be within the personal knowledge of the affiant and shall be set forth with particularity, and each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto.” You must provide clear and concise evidence of every element in each of your causes of action to prove to the judge why a judgment should be awarded to you. For example, if your cause of action is for negligence, you must prove: • Element 1. That the defendant owed a duty to the plaintiff; • Element 2. That the defendant breached that duty; • Element 3. That you (the plaintiff) were harmed; and • Element 4. That the defendant’s negligence was a substantial factor in causing your harm. The official California Civil Jury Instructions (CACI) provide plain-English explanations of the elements of almost every cause of action. The Legal Resource Guide on Jury Instructions on our website at www.saclaw.org/jury-instructions describes how to use jury instructions as a checklist for gathering evidence. You may also wish to consult these Law Library resources for information on how to prove the elements of various causes of action: California Causes of Action KFC 1003 .C35 California Elements of an Action KFC 1003 .S74 Electronic Access: On the Law Library’s computers, using WestlawNext. In your declaration, you must also prove the amount of money or other remedies you should be awarded. You must provide the facts and evidence you relied upon when determining the amount you are owed.

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>>Home >>Law 101 At the end of this guide is a sample declaration. You may download a customizable template from this link: •

Declaration In Support of Application for Default Judgment Pursuant to CCP §585(b)

or you may use Declaration (MC-030) and attach Attachment to Judicial Council Form (MC-025), if you need additional pages. Ideally, this declaration will replace an in-person hearing with the judge. You must provide the judge with all the information necessary to rule in your favor. In order to fully prove your case to the judge, you will likely need to attach exhibits to your declaration, such as receipts, contracts, police reports, etc.

Attaching Exhibits In Sacramento County, the exhibits in one set of photocopies must be separated by a rigid sheet of card stock with a tab identifying the letter of the exhibit on the bottom. The Law Library sells exhibit tabs at the Circulation Desk. Exhibits for the original and other two copies should be separated by a blank piece of pleading paper with their exhibit letter or number typed or written at the bottom of the page.

A sample declaration is included in this Guide. You may use it as an example of the types of information to include, and the amount of detail the court will want from you. You will need to adapt the language to fit your own facts and circumstances.

Step 5: Calculate Prejudgment Interest, if Appropriate When you apply for your judgment, you will need to ask for pre-judgment interest, if appropriate. Civ §§ 3287-3291 allow for pre-judgment interest in certain situations: • In cases where there are “damages certain” (damages in a known amount) or damages that are easily calculated. These are typically the “special damages” in a case, such as out-ofpocket expenses for property damage, medical bills, etc. Interest on these damages may begin to accrue from the day the right to recover was vested in the plaintiff. This is usually the date of injury or the date the contract was broken, etc. (Civ § 3287(a)); • In contract cases where there are “unliquidated damages.” These are damages that cannot be easily calculated, and must be determined by a judge or jury. The court may, at its discretion, order pre-judgment interest, but cannot set the date from which interest began to accrue earlier the date the action was filed. (Civ § 3287(b)); • In cases for non-contractual obligations, and in cases of oppression, fraud and malice, prejudgment interest may be awarded at the discretion of the court. (Civ § 3288); • In personal injury cases, if the plaintiff makes a good faith offer under CCP § 998 which is not accepted, and then receives a more favorable judgment, interest on the judgment begins to accrue from the date of the settlement offer. This situation is unlikely in a default case. (Civ § 3291). In most cases, pre-judgment interest accrues at the legal rate of 10% per year. In breach of contract cases, pre-judgment interest will accrue at the rate of interest specified in the contract; if no rate is specified, interest will accrue at 10% per year. Civ § 3287(c) caps pre-judgment interest in cases against a government entity at 7% per year. 4 www.saclaw.org/request-dj-court

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>>Home >>Law 101 To calculate your pre-judgment interest, you will need to determine the daily rate of interest and multiply that by the number of days for which interest should accrue. For example, if a judgment of $15,000 is awarded 200 days after the date of injury, the calculation of prejudgment interest would be: $15,000 x 10% = $1500 interest per year $1500 ÷ 365 = $4.11 interest per day $4.11 x 200 = $822 prejudgment interest You may use the judgment calculator at www.judgmentcenter.com/Calculator.htm to determine the amount of interest. When using this calculator, enter the date the contract was breached in the field for “date judgment was entered.” This will calculate interest from that date to the date you run the calculation. The calculator will show you the daily interest rate, which you can use if you need to adjust your calculations. To claim pre-judgment interest, you will need to prepare a declaration to the court, detailing the amount of prejudgment interest owed, and showing how you calculated that amount. If your case does not involve damages certain, you can base your interest calculations on the amount you’re asking the court to award. If the court awards a different amount, interest can be re-calculated. You may type your Declaration re: Accrual of Interest on 28-line pleading paper, which may be downloaded for free from the Law Library’s website, pre-formatted for the Sacramento County Superior Court, at www.saclaw.org/pleading-paper-sacramento, or you may use Declaration (MC030). A sample using Declaration (MC-030) is included in this Guide, which you can adapt to fit your own facts and circumstances. If you type your declaration on pleading paper, you must include the declaration under penalty of perjury clause, “I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”

Step 6: Copy and Assemble Your Documents If you are asking only for the entry of default at this time, make three (3) copies of: • Request for Entry of Default (CIV-100) If you have already asked for the default, and are now applying for the judgment, OR if you are asking for the default and judgment simultaneously, make three (3) copies of each: • Request for Dismissal of Doe Defendants (CIV-110) (if applicable) • Request for Entry of Default (CIV-100) • Declaration in Support of Application for Default Judgment Pursuant to CCP § 585(d) • Declaration re: Accrual of Interest (MC-030) • Judgment (JUD-100) Staple each photocopy, but leave the originals unstapled. The originals will be scanned into the court’s filing system, and the staple will damage the scanner. Set aside one photocopy of each document for service on the other party. For the remaining copies of each document, place the original on top of its photocopies, and paperclip them together. 5 www.saclaw.org/request-dj-court

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Step 7: Have Your Documents Served You must have someone over the age of 18 who is not a party in the case mail a set of the photocopies you made in Step 6 to the defendant. This person must then complete a Proof of Service by Mail (POS-030). Make two photocopies of the signed proof of service. See the Step-by-Step guide on Serving Documents by Mail on our website at www.saclaw.org/pages/pos-mail.aspx for more information.

Step 8: File Your Documents You must file the original document(s) and 2 photocopies you made in Step 6, along with the original proof of service and 2 photocopies you made in Step 7. When you file your request for entry of default, whether as a stand-alone document or along with a request for judgment, Sacramento County Local Rule 2.34(c) requires you to submit either the original Summons (SUM-100) and Proof of Service (POS-010) (if you have not yet filed those), or filed endorsed (stamped) copies of those documents if they were previously filed. If you do not have filed endorsed copies of these documents, you may download them from the court’s fee-based Public Case Access System, accessible online at services.saccourt.ca.gov/PublicCaseAccess/, or for at the kiosks at the courthouse. File your documents in the drop box in Room 102 in the Sacramento Superior Court at 720 Ninth Street. Fill out and attach the Civil Document Drop-Off Sheet, and date stamp the back of the original packet. A supply of Civil Document Drop-Off Sheets and a date stamp are located near the drop box.

Step 9: Attend the Default Hearing, if Required Typically, the court will review the materials you submit, and will grant your judgment (or reject it and request additional evidence) based on the paperwork. If, after reviewing the materials you submit, the court determines that personal testimony is required, you will be notified by the court of the hearing date. Be sure to attend the hearing, and bring with you any documents or other items that you believe support the claims made in your complaint.

Step 10: Serve Judgment The court will mail you a signed copy of your judgment. Make one photocopy of this judgment, and have it served on the defendant. You must have someone over the age of 18 who is not a party in the case mail a copy of the judgment to the defendant. This person must then complete a Proof of Service by Mail (POS-030). Make a photocopy of the signed proof of service, and file it with the court. See the Step-by-Step guide on Serving Documents by Mail on our website at www.saclaw.org/pages/pos-mail.aspx for more information.

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FOR HELP Sacramento County Public Law Library Civil Self Help Center 609 9th Street, Sacramento 95814 www.saclaw.org/pages/civil-self-help-center.aspx Services Provided: The Sacramento County Public Law Library Civil Self Help Center provides general information and basic assistance to self-represented litigants on a variety of civil legal issues. Appointments will be made beginning at 8:30 a.m. Patrons who are present at 8:30 a.m. will be entered into a random drawing to determine the order their case will be evaluated. If an appointment is appropriate, it will be made for later in the day. You are encouraged to arrive by 8:25 a.m. to participate in the appointment setting drawing. Eligibility: Must be a Sacramento County resident or have a qualifying case in the Sacramento County Superior Court.

FOR MORE INFORMATION At the Law Library: Win Your Lawsuit KFC 968 .Z9 D86 (Self Help) Chap. 9 Electronic Access: From any computer (Library or home) via the Legal Information Reference Center. Instructions are available on our website at www.saclaw.org/nolo-ebooks. California Forms of Pleading and Practice KFC 1010 .A65 C3 (Ready Ref) Chap. 165 Electronic Access: On the Law Library’s computers, using the Matthew Bender CD. California Civil Procedure Before Trial KFC 995 .C34 Chap. 38 Electronic Access: On the Law Library’s computers, using OnLaw. IF YOU HAVE QUESTIONS ABOUT THIS GUIDE, OR IF YOU NEED HELP FINDING OR USING THE MATERIALS LISTED, DON’T HESITATE TO ASK A REFERENCE LIBRARIAN. H:\public\LRG-SBS\SbSs\Default Judgment by Court\SBS Default by Court.docx

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ATTACHMENTS: FORMS AND INSTRUCTIONS The Judicial Council forms commonly used in this procedure are: • Request for Dismissal (CIV-110) • Request for Entry of Default (CIV-100) • Declaration re: Interest (MC-030) • Judgment (JUD-100) In addition, one of the relevant documents must be typed on 28-line pleading paper. A customizable template may be downloaded from this link: •

Declaration In Support of Application for Default Judgment Pursuant to CCP §585(b)

Sample filled-in forms with instructions are available at the end of this Guide.

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Your name, address, and phone number. “In Pro Per” means you are representing yourself.

Court name, address, and branch. Your name and the defendant’s name as they appear on the complaint.

Date your complaint was filed; Your name exactly as it appears on the Complaint.

Case Number

Check “Entry of Default” and/or “Court Judgment,” depending on what you are requesting.

If requesting only a default, check box next to 1c and insert name of defendant(s). If requesting only a judgment, check box next to 1d and insert name of defendant(s). If asking for both, check both 1c and 1d and enter the defendant(s) name(s) for both questions.

If asking for a judgment, enter the amounts you are requesting. If not asking for a judgment at this time, leave these blank.

Signature

Print Name and Date

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Your name and the defendant’s name as they appear on the complaint

Case Number

Check “did not”

Check appropriate boxes in 5a, b, and c

Check box next to 6b and insert date of mailing, name of defendant, and address where served. Signature

Print name and date

If requesting a judgment, enter the details of the costs you claimed in question 2d on the previous page. If requesting only a default, leave this question blank.

Print name and date

Signature

Print name and date

Signature

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Check box, unless the defendant is in the military. If the defendant is on active military duty and has not responded to your complaint, the court must www.saclaw.org/request-dj-court appoint an attorney to represent the defendant before the case can proceed.

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Your name, address, and phone number. “In Pro Per” means you are representing yourself.

Court name, address, and branch.

Your name and the defendant’s name as they appear on the complaint.

Check if your court fees were waived. If so, you must complete the declaration on the next page.

Case Number

Check “Without prejudice.” This means that you could re-file your case against this defendant if necessary. “With prejudice” would prevent you from re-filing in the future.

Check “Other” and “DOES 1 to x ONLY”

Sign and check “Plaintiff”

Print your name and date; check “Party Without Attorney” This portion of the form is for use in a different type of situation; leave it blank.

You will use this form to dismiss any Doe defendants you listed in your complaint. If you did not list any Doe defendants, you do not need this form.

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>>Home >>Law 101 Your name and the defendant’s name as they appear on the complaint

Case Number

Name of person whose fees were waived

Mark box 2a

Signature

Print name and date; check “Party Making Declaration

If your filing fees were waived, you must complete this page of the form. If your fees were not waived, you do not need to complete the second page of this form.

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Your name, address, and phone number. “In Pro Per” means you are representing yourself.

Case Number

Your name and the defendant’s name as they appear on the complaint.

Insert name of document.

Provide a detailed description of your case, so the judge understands the facts.

Insert name of document in footer.

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Be sure to clearly describe any Exhibits you are attaching to this declaration.

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>>Home >>Law 101 Explain what you are asking the court to award.

You must include the declaration under penalty of perjury clause.

Signature Date

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Make an Exhibit page for each document you reference as an Exhibit in your Declaration in Support of Default Judgment. Important: Sacramento County Superior Court requires that the Exhibit pages in one of your sets of copies be on a rigid sheet of card stock with a tab identifying the letter of the exhibit on the bottom. Exhibit pages for the original and other copies may be on pleading paper with “Exhibit A” typed on the bottom, above the footer. Note: The Law Library sells card stock and tabs at the Circulation Desk.

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>>Home >>Law 101 Your name, address, and phone number. “In Pro Per” means you are representing yourself.

Court name, address, and branch.

Your name and the defendant’s name as they appear on the complaint.

Case Number

Print name and date.

Sign and mark box.

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>>Home >>Law 101 Your name, address and phone number. “In Pro Per” means you are representing yourself.

Court name, address, and branch. Check “By Court” and “By Default”

Your name and the defendant’s name as they appear on the complaint.

Case Number

Check 1, “By Default,” 1e, “Court Judgment,” & 1e(2), “plaintiff’s written declaration.”

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>>Home >>Law 101 Your name and the defendant’s name as they appear on the complaint Case Number

Check “The Court” Check 5a and insert your name and the Defendant’s name as they appeared on the Complaint.

Check 6a, 6(1), 6(2), and 6(4) and insert amount of damages demanded in the Complaint, interest, and amount of costs expended. Enter total by 6(6).

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