Default Judgment and Voluntary Dismissal

• Author: Robert F. Kane/Donald G. Rez
• Pages: 433-504

Chapter 29

Default Judgment and

Voluntary Dismissal

QUICK VIEW

Definitions: A party in default has failed to file the necessary responsive pleading in a timely manner. When a party

is in default, the plaintiff can cut off the party’s right to respond by obtaining entry of default by the court clerk. After

entry of default, the plaintiff may obtain a default judgment from the clerk in certain specified cases and, in all other

cases, from the court. A default from the court requires that the plaintiff “prove up” the damages to obtain the default

judgment. A plaintiff has broad discretion to dismiss an action without prejudice at any time before commencement

of trial. Once trial has commenced, dismissal without prejudice requires stipulation or a showing of good cause.

Scope: Limitations on and effects of default judgments; clerk’s entry of default; clerk’s entry of default judgment;

court’s entry of default judgment; motions for new trial and appeal; mandatory and discretionary relief from

default for mistake, inadvertence, surprise and neglect; equitable relief; relief from void default judgments; and

discretionary dismissal by plaintiff.

Strategies and Tactics:

Allowing entry of default is rarely a good strategy against a well-crafted complaint. Once entered, a defaulting

party is out of court, admits the material allegations of the complaint, and cannot contest the evidence as to the

amount of the judgment to be entered. However, if the amount demanded is at the lowest range plaintiff will

likely recover, a default may be appropriate. A default judgment can be entered only up to the amount demanded

in the complaint or a properly served statement of damages.

Relief from a default judgment is mandatory with an attorney affidavit of fault if the motion is brought within

six months and the attorney’s fault was the cause of the entry of default. Otherwise, discretionary relief must

be sought diligently (not later than six months, but usually within three months) of discovery that a default was

entered as a result of mistake, inadvertence, surprise, or excusable neglect.

So long as trial has not commenced, plaintiff has broad discretion to unilaterally dismiss its action without

prejudice (by using the mandatory Judicial Council form) and the parties may stipulate to such dismissal at any

time. Relief from such dismissal is governed by the same rules as from defaults.

Statutes and Rules: CCP §§473, 585-587.5; CRC 3.1800.

Related Topics: Pleadings, Ch 13; Motion Practice, Ch 14.

California Pretrial Practice & Forms 29-2

Forms in Digital Access: See digital access for the following forms:

• Form 29:10 San Diego Superior Court Rules, Appendix A, Guidelines for Default Judgments.

• Form 29:20 Memorandum of Points & Authorities in Support of Request for Entry of Default Judgment.

• Form 29:30 Judgment by Default by Court [CCP §585].

• Form 29:40 Notice of Motion and Motion To Set Aside Default and Default Judgment [CCP §473(b)].

• Form 29:50 Memorandum of Points And Authorities in Support of Motion To Set Aside Default and

Default Judgment [CCP §473(b)].

• Form 29:60 Memorandum of Points and Authorities in Opposition to Defendant’s Motion To Set Aside

Default and Default Judgment [CCP §473(b)].

• Form 29:70 Notice of Motion and Motion To Set Aside Default [CCP §473.5].

• Form 29:80 Memorandum of Points And Authorities in Support of Motion To Aside Default [CCP §473.5].

• Form 29:90 Declaration In Support of Motion To Set Aside Default [CCP §473.5].

• F orm 2 9:100 Memorandum of Points and Authorities in Opposition to Motion To Set Aside Default [CCP §473.5].

• Form 29:110 Memorandum of Points and Authorities in Reply to Opposition to Defendant’s Motion To

Set Aside Default [CCP §473.5].

• Form 29:120 Notice of Ruling on Motion To Set Aside Default [CCP §473.5].

29-3 Default Judgment and Voluntary Dismissal

TABLE OF CONTENTS

I. DEFAULTS AND DEFAULT JUDGMENT

A. BASIC POINTS

1. In General

§29:01 “Default” Generally

§29:02 “Default Judgment” Generally

§29:03 Technical Compliance With Law Required

§29:03.1 Warn Opposing Counsel

§29:04 Default as Discovery and Other Sanctions

§29:05 Default Against Cross-Defendants

§29:06 Default Against Only One Defendant

§29:07 Entry of Default Against Suspended Corporation

2. Limitations

§29:20 Extended Deadlines

§29:21 No Default Judgments Against Certain Defendants

§29:22 Defense Raised by Other Defendant

§29:23 Technical Default

§29:24 Party Named Twice

3. Effect of Default and Default Judgment

§29:30 Consequences of Entry of Default and Default Judgment

§29:31 Res Judicata and Collateral Estoppel Effects of Default Judgments

§29:32 Application of Res Judicata

§29:33 Application of Collateral Estoppel

§29:34 Limitations on Collateral Estoppel

B. ENTRY OF DEFAULT BY COURT CLERK

1. When Application for Entry of Default May Be Made

§29:40 Responsive Papers Initially Precluding Entry of Default

§29:41 Filing Other Pleadings Does Not Preclude Default

§29:42 Removed Cases Remanded From Federal Court

§29:43 Default Because of Failure to Answer or Otherwise Respond

§29:44 Default After Demurrer Overruled

§29:45 Default After Demurrer Sustained

§29:46 Default After Motion to Strike or Anti-SLAPP Motion

§29:47 Default After Motion to Transfer Is Denied

§29:48 Default After Motion to Transfer Is Granted

§29:49 Appellate Review of Motion to Change Venue

§29:50 Denial of Motion for Mandatory Dismissal for Failure to Serve Summons

§29:51 Denial of Motion Regarding Quashing Service, Inconvenient Forum, Want

of Prosecution

§29:52 Demurrer or Motion to Strike Answer

§29:53 Default of Defendant Initially Sued as Doe

2. Right to Notice of Amount of Damages and Type of Relief

§29:60 Right to Notice of Damages Sought

§29:61 Damages Must Be Stated in Complaint or Statement of Damages

§29:62 Statement of Damages: In Personal Injury or Wrongful Death Case

§29:63 Matters Where Statement Is Required Before Default

§29:64 Notice of Amount of Punitive Damages

§29:65 Service of Statement of Damages and Notice of Punitive Damages

§29:66 Filing Statement of Damages

§29:67 Adequacy of Notice

§29:68 Maybe No Dollar Amount Needed in Action for an Accounting

§29:69 Timing of Service of Statement of Damages: Reasonable Notice