Default judgment damages

[Condor527]

I read Fredrikklaw's answer to a similar question of 2012, but want to be clear in my situation.

I properly filed and served a complaint for defamatory statements made on my business Facebook page. I asked the def. to remove the postings before filing the complaint, she ignored my request. Approximately 3 weeks after being served with the complaint the offending statements were removed from the Facebook page. The offensive statements were online for about 3 months and we had numerous calls from clients and customers about the posting. The libelous statements claimed I employed illegal immigrant workers and had illegal sanitation facilities that allowed raw sewage to run on the property. None of which was true.
The def. has not responded to the complaint in any legal fashion. The time has expired.
Please reiterate the steps to filing a default judgment.
Please provide a brief primer on the damages I can (or should) claim. In the prayer I asked for all the usual punitive, compensatory, special and a general damages claim for $75,000. That figure was based on the amount of revenue I stood to lose from that portion of our business.
It's impossible to determine how much new business I failed to generate based on the number of times the phone didn't ring, or potential new customers who took their business elsewhere. I averaged about 5 new business calls a week, that dropped to 2.
Thank you in advance for your very helpful forum.

 

[Proserpina]

The biggest problem I'm seeing isn't so much the defamation, but rather you being able to actually collect any judgment.

(I'm not entirely convinced that you actually have a case though)

 

[army judge]

OP, did you receive a judgment in this case?
An unresponsive plaintiff doesn't mean the defendant gets a default judgment.
After you filed, the defendant took down the purported offensive posting, correct?
What did the court do?
What did you receive from the court?

 

[fredrikklaw]

And now to the tricky part!

CONDOR527…

I will be happy to go through the steps you need to take in order to obtain a default judgment in a California court and the process is the same for both plaintiffs and defendants, and the first thing I suggest (from personal experience) is that you will do very well to brace yourself for a very long and taxing next few months.

O.K., so the defendant has not made a general appeared in the case and has also failed to make a special appearance in order to dismiss the complaint for cause; the defendant has basically chosen to ignore the summons and it has been over thirty days since process was served. So you are free to move for a default judgment and this is where the rubber meets the road.

You start by giving the defendant a courtesy last chance to answer the complaint within 10 business days (at the most) as well as put him on notice of your intention to move for a default judgment without further notice if he fails to respond again, which he will if he has not bothered to do anything thus far. I also suggest that you write proper the motion for default judgment and refrain from using judicial council forms for this purpose since your prayer for relief is quite a hefty one and also because the forms do not allow enough space for arguing your cause.

The process to obtain a default judgment is mainly a two-step dance where the amount of damages prayed for is said to be not Sum Certain; meaning that unless the complaint was for damages flowing from a breach of (for example) contract in which the terms of the contract make the damages a certainty and therefore not requiring further examination by the court. In such instances, the clerk of the court is authorized to enter default judgment against the defendant.

In your case, you will have to first make a request to the clerk of the court for only the entry of Defendant's Default, after which you are required to calendar a noticed motion in the same court to be heard for Entry of Default Judgment at which time you will most probably be required to justify with certainty the amount of damages you are asking the court to judge against the defendant.

So your first batch of papers will be captioned Plaintiff's Request for Entry of Default; it should include (1) a brief statement about the defendant having been served properly and failing to appear in the case and (2) proof of service of the complaint on the defendant plus (3) a sworn (numbered paragraphs) affidavit which says that you are the plaintiff in the case, a thumbnail of the action, the proper service on the defendant, the defendant's failure to answer or otherwise appear in the case, that time has expire, that by statute you are entitled to have defendant's default entered, and (4) a conclusion with a quick prayer for relief requested.

After the clerk enters the default of the defendant, you then calendar a date to be heard on your motion for Entry of Default Judgment. This is a noticed motion, meaning that you have to serve the notice of the motion and the motion itself on the defendant with proof of service filed with the court and at the ready. At that hearing, you will be grilled fairly extensively by the judge as to how you arrived at the amount you are asking in damages.

This is because the courts 'despise' issuing default judgments and instead heavily favor that cases be litigated and decided on merits where both parties appear and argue the case and do the adversarial system of law proud.

So, let's presume that you have managed to obtain default judgment and it is entered in court's record for posterity. Does this mean you can start collection? Not yet by a long shot! Because you have to account for and allow for time in which the defendant can move to vacate the default judgment for one of many reasons, one being for example inadvertence. And even though there is no specific time is given by the code, it is said to be a reasonable time after entry of default judgment which is at the very least is universally accepted to be six months. I have seen cases in which the defendants vacated judgments more than a year after entry of default judgment.

So, once you obtain the judgment, you will just have to grin and bear it all for six months before you start on the collection phase of the case.
Here, I agree with what Proserpina has said about collecting on a judgment; many a judgment creditors just frame and hang the judgments on their ego walls and never go through with collection because they think it as an insurmountable obstacle. This is only true if you are unaware of just how easy it is to execute a judgment on judgment debtors.

I hope this has been helpful and please post again with any other questions you might have.

fredrikklaw

 

[Condor527]

Thank you so much for your thorough explanation. As far as damages, I have no particular interest in shooting for the moon. Court costs and a nominal amount to put this person on notice to leave us alone would be sufficient. She continues to bring anonymous complaints to any city code department that will listen. Our once a month food booth was subjected to the most rigorous health inspection based on these so-called anonymous complaints. We passed with flying colors and the inspectors confided that they were trying to get this town busybody off their backs. Have you a suggestion to bring our damages into something on the low side of reasonable as a deterrent

 

[fredrikklaw]

Not a good idea!

CONDOR527…

My suggestion is this: No Changes; Leave the damage amount as it is!

My apologies if my statement regarding your $75,000 prayer for relief being on the hefty side made you think that it is unreasonable and that you have to lower the amount. The hefty remark was used to underscore the courts' standing aversion towards default judgment and the certain and inevitable scrutiny of the damages you are demanding.

You should not tinker with the prayer for relief at this stage for the following reasons:

First of all, if the $75,000 figure prayed for is in fact the true aggregate of what you have suffered in lost income thus far as the result of the Defendant's vitriolic ranting, then that what it is and what it should remain. Just prepare an accurate accounting of the damages and include it in the Motion for Default Judgment as an attachment and be ready to argue it orally as well.

Also, it would be a shock to the court and the legal system in general if you amended your complaint to show a much lower amount of damages, since amendments of this type are almost always for the purpose of increasing the amount of damages. Apart from that, it would not bode well for you as it may bring into question the veracity of your entire claim.

Furthermore, reducing the damages to an amount for only court costs plus a nominal slap-on-the-wrist fine would certainly mean a new figure well under $25,000, which in turn would mean and would necessitate the reclassification of the case from currently being Unlimited to one that is limited. Once the case is reclassified, it would then have to be reassigned to a different court room and a different judge, not to mention the fact that you would have to serve the defendant anew and repeat the whole 30-day waiting-for-answer period.

So my suggestion, in a long-winded sort of way, is that you leave the complaint as is and proceed with the application for entry of default and follow it up to conclusion by calendaring a motion for entry of default judgment and do not misconstrued the court's examination of your claim as an admonishment or disapproval of the amount prayed for.

fredrikklaw

 

[Condor527]

Thanks again for keeping this issue on track. You are providing a valuable service and I pleased I found your site. You'll be hearing from me more on another, unrelated legal issue in the anti-slapp arena. Not my issue, but a customer I am obliged to help cure an injustice. I spent 30 years in federal law enforcement, now look forward to embracing the Right Side of the Law.