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Default Judgment by Declaration in California

Default Judgment by Declaration in California

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Published by Stan Burman
This is issue number 10 of the weekly California legal newsletter. The topic of this issue is obtaining a default judgment by declaration in California. The author is a freelance paralegal who has worked in California litigation since 1995.
This is issue number 10 of the weekly California legal newsletter. The topic of this issue is obtaining a default judgment by declaration in California. The author is a freelance paralegal who has worked in California litigation since 1995.

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Categories:Types, Research, Law
Published by: Stan Burman on Sep 05, 2012
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11/04/2013

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1The topic of this issue of the newsletter is obtaining a default judgment in California by the use of declarations without having to appear in Court.
Code of Civil Procedure
§ 585(d) allows a default judgment to be entered using declarations in lieu of  personal testimony. This avoids the time and expense of a Court hearing. In fact in many counties inCalifornia this is the preferred method, only in unusual cases will the Court require a “prove-up” hearing. Note that if punitive damages are requested that some Courts and Judges will require a “prove-up”hearing.Obviously, a default must be entered against the defendant before a default judgment can be obtained.The default can be requested separately before any default judgment, in some cases this may be helpfulas it may take time to obtain the necessary documents and signatures. Judicial Council Form CIV-100Request for Entry of Default is used to have the default entered, and must also be used to have the default judgment entered as well. The appropriate boxes on the form must be checked, and when a default judgment is requested, the principal amount, the accrued interest, and any court costs and attorney feesmust be entered as well. Next the following documents must also be submitted in support of the request for default judgment.Judicial Council Form CIV-110 Request for Dismissal to request the dismissal of all fictitiously named or “DOE” defendants. Many Courts will require this before a default judgment will be entered.Statement of case (also known as summary of case) in support of request for default judgment. This mustcontain a brief summary of the causes of action against the defendant and the amounts requested for each particular cause of action. This must be prepared on pleading paper.Declaration regarding calculation of pre-judgment interest. This is required when pre-judgment interest isrequested and must detail exactly how the pre-judgment interest has been calculated such as interest rate,yearly interest divided by 365 which equals a daily interest which is then multiplied by the number of days since the breach of contract, or other event. This declaration can also contain the details as to anyattorney fees requested that are allowed by contract or statute. If a written contract is involved then
Civil Code
§ 1717 would apply. In actions based on a book account as defined in
Code of Civil Procedure
§337a entered into on or after January 1, 1987, the statutory attorney fees available under 
Civil Code
§1717.5 are available.Many Courts have a schedule for attorney fees in their local rules such as
 Los Angeles County Superior Court Local Rule
3.214 which provide the calculation basis for the attorney fees unless the Court ordersotherwise. The attorney fees should be calculated by adding the principal amount, the accrued interest,and the Court costs, then using the total figure as a basis for calculating the attorney fees.Any request for fees in excess of that provided in the local rules would have to be supported bydocumentation showing the hours spent on the case, and why the excess attorney fees are justified.This declaration must be prepared on pleading paper.Declaration of plaintiff or cross-complainant in support of request for default judgment. This must
 
contain all the ultimate facts and relevant dates which support the claim or claims against the defendant,and also contain any exhibits in support of the claims. This must also be prepared on pleading paper.The original of any promissory note or other written obligation to pay money such as a negotiableinstrument, if any, upon which the action is brought must be submitted to the Court, either separately or as an exhibit to the declaration. If the original is not available that fact should be noted in the declarationto avoid rejection of the default judgment package.The court clerk is required to note across the face of the writing, over his official signature, the date andfact that judgment has been rendered on such contract. See
California Rule of Court 
3.1806.Proposed default judgment. This must be submitted for signature by the Judge. It should contain all of therelevant amounts such as principal, pre-judgment interest, court costs, any attorney fees that arerequested, and also should state the total amount of the judgment. Some Courts may require that a partyuse the JUD-100 Judicial Council Judgment Form instead of preparing a proposed judgment on pleading paper even though JUD-100 is listed as an optional form.Plaintiff should make every effort to find out beforehand if any additional forms may be required by localCourt rule as some Courts do have specific local forms. A search of the local rules themselves may be of great assistance in that area.If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link:http://www.legaldocspro.net/newsletter.htmHave a great week and thanks for being a subscriber.Yours Truly,Stan BurmanThe author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California civillitigation since 1995.The author’s website:http://www.legaldocspro.net View numerous sample document sold by the author:http://www.scribd.com/legaldocspro © 2012 Stan Burman. All rights reserved.DISCLAIMER:Please note that the author of this newsletter, 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 othe professional services, and any information contained in this newsletter is NOT intended to constitute legaladvice.These materials and information contained in this newsletter have been prepared by Stan Burman for 

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