Legal Question in Real Estate Law in California

Prove up hearing

I have sued my business partner and he failed to answer the initial complaint. My attorney submitted a request for default judgment . My former business partner responded to the request asking the court to dismiss the charges or to set the case for trail. The court is requiring me to schedule a prove up hearing... how do I prepare for this given my attorney is no longer representing me?

Asked on 4/18/08, 2:21 am

6 Answers from Attorneys

Robert F. Cohen Law Office of Robert F. Cohen

Re: Prove up hearing

It sounds like your ex-partner is asking the court for relief from judgment and from the default. If that's so, it makes no sense to do the prove-up until the court rules on the motion. You should contact an attorney in your area for guidance. This is a critical time in your lawsuit.

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Answered on 4/18/08, 2:36 am

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

Re: Prove up hearing

Why isn't your attorney on the case anymore? How did your ex-partner "request that the case be dismissed or set for trial"? As far as I can determine from your question, he is in default (your attorney filed a request to enter default); he doesn't have a lawyer; and he has not filed a motion for relief from default. So you would have to set a default prove-up hearing (ask the clerk) and file a request for court judgment (same form as Request to Enter Default) with supporting declarations. If you have to do this yourself (bad idea) you could possibly refer to Rutter Group Cal Civil Procedure Before Trial (at the law library reference desk). If your ex-partner gets a clue and files a motion for relief from default it will be granted, and if that happens I assume you will be posting here again.

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Answered on 4/18/08, 4:02 am
Mitchell Roth MW Roth, Professional Law Corporation

Re: Prove up hearing

You have to be prepared to prove your case with competent, admissible evidence. I suggest you hire a lawyer to take over the case. Many hours are spent studying and practicing the law of Evidence and not many people are equipped to wing it.

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Answered on 4/20/08, 2:48 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Prove up hearing

After reading all four prior answers, there isn't much to add. Perhaps the following might help a little.

First, if your lawyer requested a default judgment, he must have also, either previously or at the same time, have requested the court to enter the other guy's default. That is automatic if the 30 days have passed and there is no responsive pleading on file. Buyt are you SURE the request for default was granted, and further, that it has not been set aside upon petition of the defaulting party?

Things happen as suggested in the preceding paragraph, such as requested defaults not being granted and requests for relief from default being granted, and when clients and attorneys part ways it is always possible for important information not to be learned or not to be passed along. At this point a careful check of the court's file is in order.

Next, if your former business partner is truly in default, and hasn't obtained judicial relief from default, he has no business asking the court to do anything except grant relief from default. In all other respects, he is "out of court" and cannot request dismissal of charges or trial-setting.

So, all in all, I'd have to say that someone here is operating on misinformation.

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Answered on 4/20/08, 7:22 pm
Carl Starrett Law Offices of Carl H. Starrett II

Re: Prove up hearing

will try to give you some information based on what you have said so far.

Defaults are usually done in two stages. First, I filed a Request to Enter Default if the defendant doesn't respond to the lawsuit within the time allowed by law. A default is like a guilty plea. Then you request entry of a default judgment, which is when you submit your declarations and other evidence.

Courts typically only conduct a prove up hearing if the evidence submitted is not submitted or if the damages are speculative. Things like punitive damages or pain & suffering are hard to prove without live testimony. Calling the judge's research attorney or clerk will sometimes allow you to get some idea of why they set it for a hearing. You need to be prepared to present you evidence, including witnesses and exhibits.

If the courted entered the default of the defendant (as opposed to the default judgment), the defendant has no standing to make any demands for dismissal or setting the matter for trial. However, the defendant may have filed a motion to set aside the judgment and you must address that issue as well if that has happened.

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Answered on 4/18/08, 3:21 pm

Re: Prove up hearing

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Answered on 4/22/08, 3:03 pm

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