How to Get a Default Judgment from the Clerk of the Court in California

The subject of this article is obtaining a default judgment from a clerk in the State of California. In the State of California, the clerk of court is authorized, at the request of the plaintiff, to enter a default judgment against the defendant without a court hearing or judicial action of any kind. However, the clerk of court’s power to enter a default judgment is strictly limited by law, and the requirements are interpreted very narrowly.

Entry of a default judgment by the court clerk is authorized only in the following situations: The action is one that “arises from a contract or judgment”; the action seeks recovery of “money or damages only” in a fixed or determinable amount; and the defendant was not notified by publication.

In unlawful detainer cases, the clerk will enter judgment for possession of the premises immediately upon proper application by the plaintiff. However, the plaintiff must file an application in court for damages or any other relief sought in the lawsuit, including court costs. See Code of Civil Procedure Section 1169.

The first requirement for a clerk’s judgment is that the action be one “arising out of contract or judgment” See Code of Civil Procedure Section 585(a). This includes both tacit and explicit contracts, such as quasi-contract actions, as long as the judgment is for a fixed and determinable amount.

The clerk is authorized to enter a default judgment in an action based on a judgment entered in any prior court action, this power is not limited to California judgments. See Code of Civil Procedure Section 585(a).

The recovery sought must be for “money or damages only.” This requirement has been narrowly interpreted by the courts. As a result, in an action based on a contract, the amount due must be fixed in the contract itself or determinable by calculation from its terms. If there is any doubt about the amount owed, the court clerk has no power to resolve it. Instead, a short trial will be required.

The clerk of court is authorized to enter a default judgment in which the amount due can be calculated from the contract itself, such as: Action on an open book account, such as current debit account balances, and an action on the declared account (statements received and accepted by the defendant showing charges and credits to date).

But the court clerk cannot adjudicate the amount due by taking evidence or exercising discretion. Thus, when the amount claimed by the plaintiff cannot be calculated from the contract itself, the court clerk does not have the power to pass judgment. A court judgment is required in certain situations, such as an action for accountability, etc.

In a $500 secured promissory note action, where the claim was for only $253, with no explanation as to how the reduction occurred, a California Court of Appeals ruled that the claim did not deny the possibility that the collateral securing the promissory note had not been dealt with or sold.

If the lawsuit includes a demand for attorneys’ fees, this may affect the clerk’s power to enter a default judgment.

If the defendant’s contract provides for the amount of attorney’s fees recoverable in such action, the clerk is authorized to enter judgment accordingly. For example, if the promissory note provides for attorney fees in an amount equal to 10% of the principal and interest due, the court clerk may calculate and enter the amount.

But when the contract merely calls for “attorney fees as set by the court” or “reasonable attorney fees,” the court clerk has no power to determine the amount set by the California Supreme Court.

Courts are authorized to adopt schedules of allowable attorney fees in default cases where a law or contract authorizes the award of fees, such as actions in a promissory note containing an attorney fee provision. See California Court Rule 3.1800(b). When such fees are in effect and the plaintiff is willing to accept the scheduled fee, the clerk of court may include that amount in the default judgment. See Code of Civil Procedure Section 585(a).

If the causes of action brought in a lawsuit are, in fact, separate and distinct, the clerk may enter a default judgment on the “contract” or “judgment” cause of action only. Plaintiffs who also want a judgment on the other cause of action will have to obtain a default judgment from the court.

This means that if a lawsuit joins a cause of action for breach of a construction contract with a cause of action to enforce a mechanic’s lien for work performed, the clerk may enter a default judgment only on the ” contract”. If the plaintiff wants the mechanic to be foreclosed on, he will have to get 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 of a claim that does not otherwise qualify for a clerk’s default judgment.

For example, if the lawsuit joined a “fair value” cause of action for services rendered with a “declared account” cause of action based on billings for the same services, the clerk could not enter a default judgment on the “fair value” count because there is no fixed or determinable amount, and the “declared account” claim is simply an alternate theory for recovery, the clerk has no authority to enter a default judgment on either count. A short trial 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 filed with the clerk. The court clerk is required to write down on the face of the document, above his official signature, the date and the fact that a judgment has been issued on said contract. See California Court Rule 3.1806.

If the original brief has been lost or destroyed, the plaintiff must obtain a statement 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, since he must have the original brief in order to enter judgment, unless the court orders otherwise.

If the action is to enforce a prior judgment, a certified copy of that judgment must be provided to the clerk so that the judgment may be entered.

And when the action is open book, the Court Clerk may require copies of bills or invoices, and a statement denying the existence of any written agreement with the defendant.

And it should also be emphasized that if a clerk’s judgment is obtained and the clerk awards attorney’s fees in accordance with the schedule contained in the local court rules, then the plaintiff will not be allowed attorney’s fees as a cost of filing. enforce any judgment because the fees were not awarded under contract. See Section 685.040 of the Code of Civil Procedure, which states that attorneys’ fees incurred to enforce a judgment are not included as costs unless the underlying judgment includes an award of attorneys’ fees pursuant to a contract. See also Code of Civil Procedure Section 1033.5(10)(a).

Attorneys’ fees are deemed to have been awarded in accordance with the court’s schedule. This may turn out to be a tactical error if the plaintiff seeks a broad judgment and anticipates that enforcement of the judgment will be difficult. In that case, it may be better to get a court order in which a judge can award “reasonable” attorney fees pursuant to a contract.

The plaintiff should make every effort to find out in advance how long it normally takes to obtain a default clerk’s judgment in the court in which his or her case is pending, as some courts take almost as long to enter a clerk’s judgment as to obtain a clerk’s judgment. do it. And a party is not required to obtain a default judgment from a clerk, even if authorized in a particular case.

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Sincerely,

Stan Burman

Copyright 2012 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this article, Stan Burman, is NOT an attorney and as such cannot 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 article is NOT intended to constitute legal advice.

These materials and the information contained in this article have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this article is not intended to create, and receipt does not constitute, any business relationship between sender and recipient. Any reader should not act on this information without seeking professional advice.