Legal Question in Business Law in California

Re: Breach of Contract Timeline

Well you can request a default at 30 days, but usually the defendant will answer a few days later and make your request moot. Most courts do give a little slack. So I guess there is no rule about 15 days, but generally a good idea if you do not want to waste time and money.

Re: Breach of Contract Timeline

False.

First, the time to take a default is after service of the lawsuit, not filing.

Second, if the lawsuit has not been answered in the statutory time (which can vary depending on the type of service), you can and should file for default right away.

Judges want cases to move quickly, not slowly.

And, a clerk will be entering the default. A judge will not see it until you try to get a judgment -- and sometimes not even then.

As always, I recommend hiring a lawyer rather than doing things on your own.

Re: Breach of Contract Timeline

If you've properly served the Summons and Complaint, and filed the proper Proof of Service, and waited the 30 days plus 5 for mail delivery, then properly serve and file your default request package. The court clerk will sit on it for at least a week or two before taking action.

Re: Breach of Contract Timeline

A default and a default judgment are not the same thing. A default is an entry in the court file that says the defendant has failed to respond to the summons and complaint in a timely manner. Unless and until you file a default, the defendant can still file his response even if it is late. Once the default is on file, the defendant will not be able to respond unless and until the court grants relief from the default. Requests for such relief are usually granted, though whether a particular request will succeed will depend upon the length of the delay and the defendant's explanation of why he didn't respond sooner.

There is no rule against taking a default at the first opportunity -- which is 30 days after the effective date of service on that defendant. The reason most lawyers wait a while is that, if they don't, they will look like jerks if the defendant tries to respond soon after the default is filed and then seeks relief. Evidence that you gave the defendant a chance to avoid the default will be helpful to you if the defendant brings a motion for relief.

You cannot seek a default judgment until the default is already in place. The process for obtaining a default judgment can be straightforward or complex, depending upon the specifics of the case. Without more information about your case, that's the best I can do.

Good luck.

Re: Breach of Contract Timeline

Mr. Hoffman provided the best answer.

There is no reason to wait, except that it might save you some money in the long run.

Professional courtesy is generally extended to persons that are represented by counsel or that are diligent in representing themselves in pro per. Where someone is defaulting, I think that person is owed no courtesy, and I have taken defaults on the same day that a responsive pleading is due, though I reserve this for when I believe that no paper will be filed, because as Mr. Hoffman points out, taking a default could just result in delay and added expense if the defendant is really going to appear and dispute the claims. I have seen defendants use the default procedure to delay trial and otherwise run up costs.

The decision about whether to take a default on the same day an answer is due depends on the individual case, and if you want legal advice in this regard, you will have to hire an attorney.

Re: Breach of Contract Timeline

You do not have to wait after 30 days have passed in order to have a default entered. Please contact us if you have any other questions.

Re: Breach of Contract Timeline

Are you in pro per? If so you are going to run into many obsticals and difficulties. The clerk enters the default. However, defaults may be set aside by a motion. Contact me directly.