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In the State of California, the court clerk is authorized upon a request by the plaintiff to enter a default judgment against the defendant without a court hearing or judicial action of any kind. However, the power of the court clerk to enter a default judgment is strictly limited by law, and the requirements are strictly construed. Entry of a default judgment by the court clerk is authorized only in the following situations: (1) The action is one "arising upon a contract or judgment"; (2) the action seeks recovery of "money or damages only" in a fixed or determinable amount; and (3) defendant was not served by publication. In unlawful detainer cases, the clerk will enter judgment for possession of the premises immediately upon a proper request by the plaintiff. However, plaintiff must apply to the court for damages or any other relief sought in the complaint including court costs. See Code of Civil Procedure § 1169. The first requirement for a clerk's judgment is that the action be one "arising upon a contract or judgment " See Code of Civil Procedure § 585(a). This includes implied, as well as express, contracts such as actions in quasi-contract as long as the judgment is for a fixed and determinable amount. The clerk is authorized to enter default judgment in an action based on a judgment rendered in any previous court action, this power is not limited to California judgments. See Code of Civil Procedure § 585(a). The recovery sought must be of "money or damages only." This requirement has been construed narrowly by the courts. As a result, in an action based on contract, the amount due must either be fixed in the contract itself, or be determinable by calculation from its terms. If there is any uncertainty as to the amount due, the court clerk has no power to resolve it. Instead, a court judgment will be required. See Liberty Loan Corp. of North Park v. Petersen (1972) 24 Cal.App 3d 915, 919. (emphasis added). The court clerk is authorized to enter a default judgment where the amount due can be computed from the contract itself such as: Action on open book account such as running charge account balances. See Diamond National Corp. v. Golden Empire Builders, Inc. (1963) 213 Cal.App. 2d 283, 288, 289. Action on account stated (statements received and accepted by defendant showing charges and credits to date). See Fallon & Co. v. United States Overseas Airlines, Inc. (1961) 194 Cal.App. 2d 546, 551, 552. But the court clerk cannot adjudicate the amount due by taking evidence or exercising discretion. Thus, where the amount claimed by plaintiff cannot be computed from the contract itself, the court clerk has no power to enter judgment. A judgment by the court is required in such situations as: Action for an accounting. See Crossman v. Vivienda Water Co. (1902) 136 Cal. 571, 574.
Action for "reasonable value" of property or services conferred; or "net profits" of a business. See Gray v. Laufenberger (1961) 195 Cal.App.2d Supp. 875, 878. Action on secured promissory note claiming that security has become "worthless" The Court ruled that testimony was necessary to determine whether this is so. See Ford v. Sup.Ct. (Orton) (1973) 34 Cal.App 3d 338, 342. Action on a secured promissory note for $500, where the demand was only $253, without any explanation as to how reduction occurred, the Court ruled that the complaint failed to negate the possibility that the collateral securing the note had not been dealt with or sold. See Liberty Loan Corp. of North Park v. Petersen (1972) 24 Cal.App 3d 915, 919, 920. If the complaint includes a demand for attorney fees, this may affect the clerk's power to enter a default judgment. If the contract sued upon stipulates the amount of attorney fees recoverable in such action, the clerk is authorized to enter judgment accordingly. For example if the promissory note provides for attorney's fee in an amount equal to 10% of principal and interest due, the court clerk can compute and enter the amount. But where the contract merely calls for an "attorney's fee as fixed by the court," or a "reasonable attorney's fee," the court clerk has no power to determine the amount. See Landwehr v. Gillette (1917) 174 Cal.654, 657, 658. Courts are authorized to adopt schedules of attorney fees allowable in default cases where a statute or contract authorizes fee awards such as actions on a promissory note containing an attorney fee provision. See California Rule of Court 3.1800(b). Where such fee schedules are in effect, and plaintiff is willing to accept the scheduled fee, the court clerk may include that amount in the default judgment. See Code of Civil Procedure § 585(a). If the causes of action joined in a complaint are in fact, separate and distinct, the clerk can enter default judgment on the "contract" or "judgment" cause of action only. Plaintiffs who want judgment on the other cause of action as well will have to obtain a default judgment from the court. See Norman v. Berney (1965) 235 Cal.App 2d 424, 431, 432. This means that if a complaint joins a cause of action for breach of a construction contract with a cause of action to foreclose a mechanic’s lien for work done, the clerk can enter default judgment only on the "contract" cause of action. If the plaintiff wants his mechanic's lien foreclosed, he will have to obtain a court judgment. But the clerk cannot enter a valid default judgment where the "contract" cause of action is merely an alternative theory for recovery on a claim that otherwise does not qualify for a clerk's default judgment. See Brown v. Sup.Ct. (Stewart) (1966) 242 Cal.App 2d 519, 525. For example if the complaint joined a cause of action for "reasonable value" of services rendered with cause of action for "account stated" based on billings for same services, the clerk could not enter a default judgment on the "reasonable value" count because there is no fixed or determinable amount, and
the "account stated" claim is merely an alternative theory for recovery, the clerk has no authority to enter default judgment on either count. A court judgment is required. A promissory note or other written obligation to pay money such as a negotiable instrument, if any, upon which the action is brought must be submitted to the clerk. The court clerk is required to note across the face of the writing, over his official signature, the date and fact that judgment has been rendered on such contract. See California Rule of Court 3.1806. If the original writing has been lost or destroyed, plaintiff should obtain a declaration to that effect and apply for an ex parte court order directing the court clerk to accept a copy in lieu of the original. Otherwise the clerk cannot enter judgment as the clerk must have the original writing in order to enter a judgment unless the court orders otherwise. If the action is one to enforce an earlier judgment, a certified copy of that judgment must be provided to the clerk in order for them to enter the judgment. And where the action is on an open book account, the court clerk may require copies of the bills or invoices, and a declaration negating the existence of any written agreement with the defendant. And it should also be stressed that if a clerk’s judgment is obtained and the clerk awards attorney fees pursuant to the schedule contained in the local rules of the court, that means that plaintiff will not be allowed attorney fees as a cost of enforcing any judgment because the fees were not awarded pursuant to a contract. See Code of Civil Procedure § 685.040 which states that attorney fees incurred for enforcing a judgment are not included as costs unless the underlying judgment includes an award of attorney fees pursuant to a contract. See also Code of Civil Procedure § 1033.5(10)(a). The attorney fees are considered to have been awarded pursuant to the court’s schedule. This can prove to be a tactical mistake if the plaintiff is seeking a large judgment and anticipates that enforcement of the judgment will be difficult. In that case, it may be better to obtain a court judgment where a judge can award “reasonable” attorney fees pursuant to a contract. Plaintiff should make every effort to find out beforehand how long it usually takes to obtain a clerk’s default judgment in the court in which their case is pending as some court’s take almost as long to enter a clerk’s judgment as they do to enter a court judgment. And a party is not required to obtain a clerk's default judgment, even if it would be authorized in a particular case. If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link: http://www.legaldocspro.net/newsletter.htm Have a great week and thanks for being a subscriber. Yours Truly, Stan Burman The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California civil litigation since 1995.
The author’s website: http://www.legaldocspro.net View numerous sample documents 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 other professional services, and any information contained in this newsletter is NOT intended to constitute legal advice. These materials and information contained in this newsletter have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this newsletter is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.
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