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.


Asked on 11/29/10, 7:31 pm

5 Answers from Attorneys

Michael Stone Law Offices of Michael B. Stone Toll Free 1-855-USE-MIKE

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.

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Answered on 12/04/10, 7:37 pm
Robert F. Cohen Law Office of Robert F. Cohen

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.

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Answered on 12/04/10, 7:41 pm
Herb Fox Law Office of Herb Fox

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.

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Answered on 12/04/10, 8:40 pm
Anthony Roach Law Office of Anthony A. Roach

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.

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Answered on 12/05/10, 10:21 am

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.

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Answered on 12/06/10, 5:06 pm


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