Legal Question in Civil Litigation in California
My Question: If the opposing attorney files a Demurrer and Motion to Strike after the 30 days of being served expires, and I filed an Application for Default Judgment, 1 day after they filed their Demurrer and Motion to Strike,won't the Clerk enter my default judgment?
Background to question:
Civil Case:
I'm representing myself. I filed a first amended complaint after the opposing party's attorney filed a demurrer and a motion to strike on my original complaint.
30 days passed after filing my amended complaint and the opposing party's attorney did not answer. So I filed for a "Clerk's Judgment" for an "Application for Judgment for Entry Default"
I later found out that the day before I filed my application for Default Judgment, the opposing attorney filed a demurrer and motion to strike, but it was still 30 days AFTER my amended complaint was served on the defendant.
California Civil Code of Procedure 471.5 and 585 states:
471.5. (a) If the complaint is amended, a copy of the amendments shall be filed, or the court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments or amended complaint must be served upon the defendants affected
thereby. The defendant shall answer the amendments, or the complaint
as amended, within 30 days after service thereof, or such other time
as the court may direct, and judgment by default may be entered upon
failure to answer, as in other cases. For the purposes of this
subdivision, "complaint" includes a cross-complaint, and "defendant"
includes a person against whom a cross-complaint is filed.
(b) If the answer is amended, the adverse party has 10 days after
service thereof, or such other time as the court may direct, in which
to demur to the amended answer.
585. Judgment may be had, if the defendant fails to answer the
complaint, as follows:
(a) In an action arising upon contract or judgment for the
recovery of money or damages only, if the defendant has, or if more
than one defendant, if any of the defendants have, been served, other
than by publication, and no answer, demurrer, notice of motion to
strike of the character specified in subdivision (f), notice of
motion to transfer pursuant to Section 396b, notice of motion to
dismiss pursuant to Article 2 (commencing with Section 583.210) of
Chapter 1.5 of Title 8, notice of motion to quash service of summons
or to stay or dismiss the action pursuant to Section 418.10, or
notice of the filing of a petition for writ of mandate as provided in
Section 418.10 has been filed with the clerk of the court within the
time specified in the summons, or within further time as may be
allowed, the clerk, upon written application of the plaintiff, and
proof of the service of summons, shall enter the default of the
defendant or defendants, so served, and immediately thereafter enter
judgment for the principal amount demanded in the complaint, in the
statement required by Section 425.11, or in the statement provided
for in Section 425.115, or a lesser amount if credit has been
acknowledged, together with interest allowed by law or in accordance
with the terms of the contract, and the costs against the defendant,
or defendants, or against one or more of the defendants.
5 Answers from Attorneys
I get it that you're representing yourself. Your attempt to take their default will fail. Probably their demurrer will be sustained, and you'll lose the case. But it's a case you can afford to lose, otherwise you'd have hired an attorney.
Most courts would permit the demurrer to go forward, despite the passage of 30 days. The truth is, courts prefer that cases be tried on their merits. (There is case law on that issue.) If the courts were to follow the law precisely, all that the defendant would do is file a motion to set aside the default, which would be granted, based upon the attorney's neglect. So, if you're going to fight the demurrer, fight it on its substance rather than on these procedural grounds. Of course, bring up the issue in your opposition, to preserve it for an appeal, if necessary.
While I agree that it's tough to represent yourself, Mr. Stone's comments are not helpful.
On behalf of professional attorneys, I apologize for Mr.Stone's attitude.
But, both he and Mr.Cohen are correct. Default is not a game, it is a real situation where the opposing party truly does not not respond. You will likely lose any attempt to obtain a default, and if a default was entered the defendant can probably get it set aside on appeal.
So, best advice is to deal with the merits. If you have a case, be willing to stand behind it and prove it. If you cannot, you should not be in court.
The untimely demurrer still prevents the entry of default. Your sole remedy is to move to strike the untimely demurrer. In my experience, courts frown on motions to strike untimely demurrers when they were only a day late. I agree with Mr. Cohen, in that you need to address the issues raised in the demurrer.
Any responsive pleading filed before a default is entered will block a default. If the responsive pleading is filed late, you can move to strike it, but as long as it is on file no default can be entered. The other attorneys are also correct that it is a waste of time to file a motion to strike a responsive pleading just because it was late filed. Even if the court grants the motion the court must grant their follow-up motion for relief from default and give them an opportunity to answer, putting you right back where you are now. Some courts will even sanction you if you try to put everyone through that circular process. Also, Mr. Stone may be a jerk, but he is right. I have been practicing almost a quarter century and I have never once seen a pro per plaintiff win against an attorney for the defendant(s). So if you can't afford an attorney, you must be able to afford to lose the case.
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
