The 10 Commandments of Obtaining a Default Judgment (Part 1)

The 10 Commandments of Obtaining a Default

Judgment(Part 1)

Greg Groeneveld. Attorney Action Club February 20, 2014

[email protected]


I. Thou shalt KNOW THINE ENEMIES’ NAMES AND SEEK JUDGMENT AGAINST

THEM IN ALL THEIR FORMS• How many of you have judgments you have

never collected a penny on ?• How many of those judgment would be

collectable if you were able to add the right judgment debtor?

• We talked a lot about this in my CLE on Making Judgments Collectable


Thou shalt KNOW THINE ENEMIES’ NAMES AND SEEK JUDGMENT AGAINST THEM IN ALL THEIR FORMS

• " I've seen way too many defaults J's against defunct or suspended corporations, w/ no assets to go after. The prevailing attorney failed to find a way to actually name a human being as Defendant in addition to the corp, in order to increase the odds of actually enforcing the J.

• I know it's not always possible to name a human being, but for many attorneys it's real easy to get a shiny new default J against a corp. The attorney gets paid their money, but that J may not be worth anything to the Plaintiff." -- Ran Bush - Applied Judicial Research


II. Thou shalt KNOW THINE ENEMIES’ NAMES AND SEEK JUDGMENT AGAINST THEM IN ALL THEIR FORMS

• "I suggest to attorney's to sue owners of entities as well as the entity as it forces the owners to come to court to protect themselves, thus, no default

• Record an abstract of the judgment then have a certified copy served on the JD to prove knowledge of the judgment (after 120 days is it hard to win a MTV based upon lack of service or knowledge" WALTER STEINMANN AKA Mr Meany


Thou shalt serve a statement of damages on thine enemies OR STATE THY DAMAGES

WHERE SO REQUIRED• Required for personal injury and wrongful

death actions. Interpreted broadly to include actions in which injury or death claims are closely tied to whatever other relief is requested. Jones v. Interstate Recovery Service 160 Cal.App.3d 925, 930, (1984)

• (Judicial Council Form Civ-050)


Thou shalt serve a statement of damages on thine enemies OR STATE THY DAMAGES WHERE SO

REQUIRED

• It is a good idea to include a statement of damages with every application for a default judgment (or at least check to be sure the complaint specifically alleges the amount of damages sought). Including the separate statement avoids uncertainty as to whether the complaint falls in one of the categories requiring a separate statement of damages



REQUIRED

• Before a default may be entered, plaintiff must serve defendant with a “statement of the nature and amount of damages sought.” CCP § 425.11(b) Service after default entry but before prove-up is not sufficient



REQUIRED

• Even required where default ordered as discovery sanction



REQUIRED

• Required for defaulting cross defendant. Plaintiff's service of a § 425.11 statement of damages does not satisfy the statute as to a codefendant's indemnity or contribution claim against the defaulting defendant. A CCP § 425.11 notice is required even where there has been no settlement and the cross-complainants therefore do not know the precise amount of damages for which indemnity is sought against the defaulting defendant. In such a case, the CCP § 425.11 notice should estimate the amount of damages that Plaintiff may recover. Schwab v. Southern Calif. Gas Co.114 Cal.App.4th at 1326



REQUIRED

• The amount of damages must be stated in the complaint or the default judgment is void. Even though a Statement of Damages is served. Levine v. Smith 145 Cal.App.4th 1131, 1137(2006)

• Forma super Substantia was the Levine court’s motto. TERRIBLE opinion but we have to live with it.



REQUIRED

• The take away is probably to think of enforcing the judgment before you take the default.

• It may make sense to included damages in the prayer even if you think a statement of damages may be more appropriate but also to serve the statement of damages with the complaint making sure that what you say in each is identical.

• An enforceable judgment is, ultimately, the only thing you are looking for in litigation but, I think it may be something we don’t pay nearly enough attention to.


III. Thou shalt HEED THE ADVICE OF THE WISE PROCESS SERVER (Anne Vode)

• Anne Vode (Mercury Investigations) will call me and suggest I serve a statement of damages with the complaint if the service is going to be difficult. If defendant has not appeared in the action, the CCP § 425.11 statement of damages must be served “in the same manner as a summons” (i.e., personal service). CCP § 425.11(d)(1)


Thou shalt HEED THE ADVICE OF THE WISE PROCESS SERVER (Anne Vode)

Anne will actually take pictures of the person as she is serving them. I love her work.


IV. Thou shalt TAKETH DEFAULT ONLY WHEN thine enemies HAVE BEEN WHOLLY UNCLEAN IN THE

COURT'S SIGHT

• Courts have held that there is an ethical duty to warn your opponent. Fasuyi v. Permatex, Inc. 167 Cal. App. 4th 681, 702 (2008).

• Everyone I have talked to has had a righteous default set aside.


Thou shalt TAKETH DEFAULT ONLY WHEN thine enemies HAVE BEEN WHOLLY UNCLEAN IN THE

COURT'S SIGHT

Proving up a default can be a pain in the

and are often set aside so don't take them if you don't have to.


V. Thou shalt MAKE PRAISEWORTHY SERVIVCE AND PROVIDE THINE ENEMIES WITH OPPORTUNITY TO

REPENT THEIR FAILURE TO APPEAR• "Make sure that service is good, as in perfect-good, as in no-possible-

question-at-all that it is good." • Make sure that the proof of service is excruciating[ly] well documented --

you simply can't document this enough, and make sure that all the documentation is filed with the Court and makes it into the Court's file and docket sheet, recalling that fights to set aside judgments often devolve to ONLY what is in the debtor's file.

• Give as much notice to the debtor about the default as possible, and as frequently as possible; don't just stand on the minimum required. You want the attorney to later testify: "We called the debtor to advise of the default, we faxed the debtor to advise of the default, we e-mailed the debtor to advise of the default, we sent a process server out to smack the debtor over the head with the default, but nonetheless, the debtor did nothing and slept on his rights, only to wake up and try to complain now." -- Jay Adkisson, Esq


Thou shalt MAKE PRAISEWORTHY SERVIVCE AND PROVIDE THINE ENEMIES WITH OPPORTUNITY TO

REPENT THEIR FAILURE TO APPEAR• "Air tight service: have the RPS include supporting evidence such as

photos and gps documentation of service and a full statement of the events during service. Include how many times service was attempted and what information was relied on that the address was correct.

• Evidence to support case: even if it's knowingly going to be a default judgment, make sure any evidence that can be included can be. Don't wait for an appeal or retrial to bring in good evidence that was already available.

• Hire a investigator to confirm the facts, such as address, phone numbers, photo of defendant name of business and it's formation status.

• "This is all text book stuff and nothing new to you, but it's amazing how many attorneys and law firms ignore this." John Schmidt JCS Associates



REPENT THEIR FAILURE TO APPEAR• "Pictures work. Example: Defendant in UD claimed he was never served the Notice

to Terminate after Foreclosure. I served it. The attorney had me go to court with her on his Motion to Set Aside. As the Judge was getting ready to set aside the Default on the UD, I produced photographs of the notice securely taped to the defendant's entry gate. He would have had to cut it off in order to get to his house and the mailed copy had not been returned to our office. The Judge did a 180 degree turnabout and ordered the issuance of the Writ of Possession immediately. She also admonished him for lying to her.

• 2) Also, to add to Jay's comments: Get copies of everything you can from your process server: Field notes, photos, anything. Also verify that the person who served the document was registered on the day of the service (get a copy of their registration and bond). Evidence Code 647 puts the burden of proof on the defendant to prove that he wasn't served rather than on your server to prove that he was if the service was performed by a Registered Process Server." Michele Dawn RPS#117 and CA PI#24790

• RANCHO ATTORNEY SERVICE



REPENT THEIR FAILURE TO APPEAR

• Cal. Evid Code 647 “The return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”



REPENT THEIR FAILURE TO APPEAR

• Get a recent picture of the person to be served if possible and give it to your process server


ENFORCING THE JUDGMENT IS A CRUCIAL PHASE IN THE LITIOGATION

• As we all know, litigation can be expensive and time-consuming. Obtaining a judgment you are not able to collect, regardless of how you obtained it, is disastrous for you and your client. Think about collection when you draft your complaint, when you serve your complaint ( and your statement of damages) and when you set up your default judgment to be collectible. Give the defendant so much notice and opportunity to cure that the judge will gag at the thought of letting them get away with ignoring the court system.

The 10 Commandments of Obtaining a Default Judgment (Part 1)

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