Motion to Entry of Default

[Profman]

Jurisdiction

California

What are the options after a failure of a Defendant to file a timely answer, from a Court Order from a Motion to Set Aside Default is granted ?

Timeline :

The Defendant was sub-served with Summons and Complaint.

The Defendant failed to answer, and a (Clerk) Default was entered.

The Defendant's motion to Set Aside the Default was granted, with a 10 days with which to answer.

The Defendant fails to answer, instead choose to delay the proceeding by filing a Demurrer instead.

The Clerk of the Court refused to allow Plaintiff to file a Request to Enter a Default again, since the Court has granted the Defendant's Motion to Set Aside.

The Plaintiff files an Opposition.

How can the Plaintiff try to enter Default due to failure of the Defendant to file a timely answer, as ordered by the Court ? Possible Notice of Motion for Application for Entry of Default papers ?
(With request to Strike any possible future untimely Answers that the Defendant may file prior to the hearing of the Motion to Enter Default)

Who has the best recommendations ??

 

[Michael Wechsler]

Without more facts it's impossible to even begin to tackle the issue. What you describe would appear to be an unusual occurrence. To begin, if the defendant filed a motion, why would they have 10 days to answer? And if the motion was granted to set aside the default, I would think that ends the issue entirely.

From my experience, courts generally don't favor default judgments. Unless it's clearly warranted, litigants should have their day in court. The requirements are typically that the defendant must show (a) that if they had an opportunity in court they would have a reasonable chance of winning their case, and (b) that they didn't respond for a good reason (e.g., improper service, etc.)

I don't know what is going on here. If a judge feels like there is good reason not to slam the door shut on the defendant, you may face a difficult hill to climb.

 

[Profman]

Without more facts it's impossible to even begin to tackle the issue. What you describe would appear to be an unusual occurrence. To begin, if the defendant filed a motion, why would they have 10 days to answer? And if the motion was granted to set aside the default, I would think that ends the issue entirely.

From my experience, courts generally don't favor default judgments. Unless it's clearly warranted, litigants should have their day in court. The requirements are typically that the defendant must show (a) that if they had an opportunity in court they would have a reasonable chance of winning their case, and (b) that they didn't respond for a good reason (e.g., improper service, etc.)

I don't know what is going on here. If a judge feels like there is good reason not to slam the door shut on the defendant, you may face a difficult hill to climb.

In this instance, the Defendant was Defaulted by the "Clerks" Entry of Default (not a default judgment).
The Defendant's Motion (To Vacate / Set Aside) was granted, and with leave to file a Answer within 10 days. The Court ordered the Defendant to "Answer" within 10 days.
However instead of answering, the Defendant filed a Demurrer, which is typically only allowed when the initial Summons and Complaint is served and prior to Default. Since a Demurrer is basically a Motion, it can only be used in the initial service of the Summons and not after a Default is entered.

However, the Clerk has refused to enter a ("second") Entry of Default after the Defendant has failed to file a timely answer, following his motion to Set Aside Default which was granted with a Court Order to answer with the 10 day period of time.

It seems that the only course of action is to File a Motion for a Request to Enter a Default for not complying to a Court Order, and perhaps include a Motion to Strike any future untimely answer.

I am sure these issues are not uncommon. As you have stated, the court gave the Defendant another opportunity to answer, but the Defendant failed to do so.