Chapter 2 - Judgment Upon Failure to Answer
California Code of Civil Procedure — §§ 585-587.5
Sections (5)
Amended by Stats. 1991, Ch. 1090, Sec. 3.
(a)Every application to enter default under subdivision (a) of Section 585 shall include, or be accompanied by, an affidavit stating facts showing that the action is or is not subject to Section 1812.10 or 2984.4 of the Civil Code or subdivision (b) of Section 395.
(b)When a default or default judgment has been entered without full compliance with Section 1812.10 or 2984.4 of the Civil Code, or subdivision (b) of Section 395, the defendant may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action in the
proper court. The notice of motion shall be served and filed within 60 days after the defendant first receives notice of levy under a writ of execution, or notice of any other procedure for enforcing, the default judgment.
(c)A notice of motion to set aside a default or default judgment and for leave to defend the action in the proper court shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the action was not commenced in the proper court according to Section 1812.10 or 2984.4 of the Civil Code or subdivision (b) of Section 395. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.
(d)Upon a finding by the court that the motion was made within the period permitted by subdivision (b)
and that the action was not commenced in the proper court, it shall set aside the default or default judgment on such terms as may be just and shall allow such a party to defend the action in the proper court.
(e)Unless the plaintiff can show that the plaintiff used reasonable diligence to avoid filing the action in the improper court, upon a finding that the action was commenced in the improper court the court shall award the defendant actual damages and costs, including reasonable attorney’s fees.
Amended by Stats. 2007, Ch. 43, Sec. 6. Effective January 1, 2008.
(a)In the following cases the same proceedings shall be had, and judgment shall be rendered in the same manner, as if the defendant had failed to answer:
(1)If the complaint has been amended, and the defendant fails to answer it, as amended, or demur thereto, or file a notice of motion to strike, of the character specified in Section 585, within 30 days after service thereof or within the time allowed by the court.
(2)If the demurrer to the complaint is overruled and a motion to strike, of the character specified in Section 585, is denied, or where only one thereof is filed, if the demurrer is overruled or the motion to strike is denied, and the defendant fails to answer the complaint within the time allowed by the court.
(3)If a motion to strike, of the character specified in Section 585, is granted in whole or in part, and the defendant fails to answer the unstricken portion of the complaint within the time allowed by the court, no demurrer having been sustained or being then pending.
(4)If a motion to quash service of summons or to stay or dismiss the action has been filed, or writ of mandate sought and notice thereof given, as provided in Section 418.10, and upon denial of the motion or writ, the defendant fails to respond to the complaint within the time provided in that
section or as otherwise provided by law.
(5)If the demurrer to the answer is sustained and the defendant fails to amend the answer within the time allowed by the court.
(6)(A) If a motion to transfer pursuant to Section 396b is denied and the defendant fails to respond to the complaint within the time allowed by the court pursuant to subdivision (e) of Section 396b or within the time provided in subparagraph (C).
(B)If a motion to transfer pursuant to Section 396b is granted and the defendant fails to respond to the complaint within 30 days of the mailing of notice of the filing and case number by the clerk of the court to which the action or proceeding is transferred or within the time provided in subparagraph (C).
(C)If the
order granting or denying a motion to transfer pursuant to Section 396a or 396b is the subject of an appeal pursuant to Section 904.2 in which a stay is granted or of a mandate proceeding pursuant to Section 400, the court having jurisdiction over the trial, upon application or on its own motion after the appeal or mandate proceeding becomes final or upon earlier termination of a stay, shall allow the defendant a reasonable time to respond to the complaint. Notice of the order allowing the defendant further time to respond to the complaint shall be promptly served by the party who obtained the order or by the clerk if the order is made on the court’s own motion.
(7)If a motion to strike the answer in whole, of the character specified in Section 585, is granted without leave to amend, or if a motion to strike the answer in whole or in part, of the character specified in Section 585, is granted with leave to amend and the defendant fails to
amend the answer within the time allowed by the court.
(8)If a motion to dismiss pursuant to Section 583.250 is denied and the defendant fails to respond within the time allowed by the court.
(b)For the purposes of this section, “respond” means to answer, to demur, or to move to strike.
Amended by Stats. 1995, Ch. 796, Sec. 12. Effective January 1, 1996.
An application by a plaintiff for entry of default under subdivision (a), (b), or (c) of Section 585 or Section 586 shall include an affidavit stating that a copy of the application has been mailed to the defendant’s attorney of record or, if none, to the defendant at his or her last known address and the date on which the copy was mailed. If no such address of the defendant is known to the plaintiff or plaintiff’s attorney, the affidavit shall state that fact.
No default under subdivision (a), (b), or (c) of Section
585 or Section 586 shall be entered, unless the affidavit is filed. The nonreceipt of the notice shall not invalidate or constitute ground for setting aside any judgment.
Added by Stats. 1986, Ch. 540, Sec. 10.
As used in this chapter, unless the context otherwise specifically requires, the following terms apply:
(a)“Complaint” includes a cross-complaint.
(b)“Defendant” includes a cross-defendant.
(c)“Plaintiff” includes a cross-complainant.