Mandatory Relief from Default: Attorney-Fault; C.C.P. 473(b)

  Code of Civil Procedure section 473, subdivision (b), contains the attorney-fault provision for relief from default which provides “…the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any . . . resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”

  Relief under the statute is mandatory if the conditions are fulfilled. The motion is timely if filed within six months of the entry of default judgment or dismissal. Due diligence is not required. Nor is it necessary for the attorney attesting to mistake, inadvertence, surprise or neglect be attorney of record for the party requesting relief. The statute only requires the affidavit be executed by an attorney who represents the client and whose mistake, inadvertence, surprise or neglect in fact caused the client’s default or dismissal. Continue reading

Notice of Damages: Required for Entry of Default in Action for Accounting?

  It is a fundamental concept of due process that a judgment against a defendant cannot be entered unless he was given proper notice and an opportunity to defend. Code of Civil Procedure section 580 therefore provides the relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint or in a statement of damages as required by section 425.11. Section 425.11 refers to the required statement which must be served prior to entry of default in an action for personal injury or wrongful death. In those actions, the complaint must not allege a specific dollar amount of damages.The purpose of sections 580 and 425.11 is to guarantee defaulting parties adequate notice of the maximum judgment that may be assessed against them. Continue reading

Liquidated Damages: Provision in Stipulation for Judgment an Unenforceable Penalty

  Plaintiff sued on a promissory note for $85,000. The parties agreed to settle for the sum of $38,000, payable in installments over 24 months and entered into a stipulation for entry of judgment. The stipulation provided that if a payment was not made on time the original amount of $85,000 became due.

  Can plaintiff recover the sum of $85,000, minus credit for payments made under the agreement? No. Plaintiff is limited to the sum of $38,000, minus credit for payments made under the stipulation. Purcell v. Schweitzer. Continue reading

Dissolution of Marriage: Judgment Properly Entered Nunc Pro Tunc Following Death of Party

  If a party dies between the time the court orally grants a judgment of dissolution and the time the court enters a written judgment — does the court lose jurisdiction to enter judgment nunc pro tunc? No, writes the court in Marriage of Martin. Continue reading

Enforcement of Judgment: Attorney Fees as Costs, Privity Not Required

  Code of Civil Procedure section 685.040 authorizes the court to award a judgment creditor attorney fees incurred in enforcing a judgment if the underlying judgment included an award of fees as costs. Continue reading

Enforcement of Sister State Money Judgments in California

  It is fundamental that a judgment of a sister state must be given full faith and credit if that sister state had jurisdiction over the parties and the subject matter, and all interested parties were given reasonable notice and opportunity to be heard.  To fulfill this mandate in California a sister state or foreign money judgment may be registered and enforced pursuant to the Sister State and Foreign Money-Judgment Act (SSFMJA) codified at Code of Civil Procedure sections 1710.10-1710.65. Continue reading

Calculation of Interest on California Judgment

  If you are fortunate to have obtained a judgment from a California court, you may wonder how interest on the principal amount of the judgment and interest on prejudgment and postjudgment costs are calculated. Interest on the principal amount of judgment is calculated at the rate of 10 percent per annum. It is calculated on the principal amount of the judgment from the date of entry. Continue reading

No Default Judgments in Quiet Title Cases: Period

   Over the years I have handled my fair share of quiet title cases. They are unique in several respects. The recent case of Nickell v. Matlock, Second Appellate District, highlights one unique aspect: default judgments are not allowed. Pursuant to statutes specific to quiet title actions, the court must, in all cases, require evidence of plaintiff’s title and must hear evidence that is offered as to the claims of any other defendants.

   What about the circumstance when a defendant’s pleading has been struck and his default entered as a sanction? Is that defendant allowed to present evidence of title at the evidentiary hearing? Continue reading