Legal Question in Civil Litigation in California

You served the defendant by mail? If he is in California then the service was defective. You can't get a default unless and until you serve him properly. You must also file a proof of service demonstrating that you served the summons, complaint, etc. properly. You can't get a default until this has been done.

Even where the defendant is properly served, the plaintiff must file a request for entry of default, not a notice of entry. If you properly request entry of default, then the clerk will enter it. The judge won't need to do anything.

Note also that a default is not the same thing as a default judgment. If you get a default and then don't seek a default judgment the court will issue an OSC against *you* for neglecting the case.

You seem not to know what you're doing. I recommend getting a lawyer.

Normally the failure to respond by a defendant that should know what they're doing indicates you have messed up in some major manner. The judge does not see requests for entry of default. You should have lodged an extra copy of your request to enter default, and it should have been returned to you with one of the boxes checked that default either was or was not entered as requested. Check with the clerk's office.

As a way of explanation, "proper service" means to have a process server or a non-party personally serve the defendant -- i.e. by handing the summons and complaint to the defendant, or handing it to a competent adult in the household and thereafter mailing a copy to the defendant at the home address. In addition, the person may be served at his/her business address. Mail is not acceptable unless the court orders it.

The only service of a summons and complaint that is authorized by mail for an unlimited civil action is when you mail a copy of the summons and complaint, with two (2) copies of a request to acknowledge receipt. (Judicial Council form POS-015) Mailing alone is not sufficient service, as service is not complete unless the defendant waives service by signing the acknowledgment, and service would only be complete on the day that the defendant signed the acknowledgment.

The only other mailing is through substituted service, where a copy of the summons and complaint is left with a competnent someone over the age of 18 at the person's usual place of abode, usual place of business, or usual mailing address (other than a post office box). This is followed up by mailing copies, but service would not be complete until the 10nth day after mailing, so the defendant would actually have 40 days to respond.

There are many other tricky rules governing service, so don't be surprised if you get your default rejected by the court clerk.

Now that you've been told what you did wrong, you should understand that you will never get the default without correcting the failure to properly serve the defendant and filing a proper proof of service signed by a non-party to the lawsuit (i.e., not you). I write to suggest what you can do about it. There are many process servers available. If the defendant is local to you, you can find someone in the yellow pages. If they are not local, you might try www.onelegal.com. They provide service of process nationwide.