Legal Question in Personal Injury in California
what happens next if the defandant did not file a response to the statement of d
i filed a wrongful death suit against a person and their estate. the person is deceased so the person handling the estate was served with the summons and statement of damages. it is my understanding that the defendant has 30 days to respond to the papers and it has now been over 45 days and i still have not been served a response. what legal document should i file next since the defandant has not responded?
5 Answers from Attorneys
Re: what happens next if the defandant did not file a response to the statement
You will need to file a request for entry of default. Once default is entered, you will need to "prove up" your damages,which will probably require a court hearing.
If you did not file a claim with the person's estate, whatever you do may be set-aside since as a general rule (at least in California) a claim against an estate is a prerequisite to a lawsuit.
You should probably make an appointment with an attorney in your area to discuss this matter in further detail.
Re: what happens next if the defandant did not file a response to the statement
You need to file a Request for Entry of Default. Depending upon the allegations you made in the complaint you may also be able to request a clerk's judgment, though it is more likely you will need to get a default judgment from the court. The procedures for doing this are a bit arcane and you may want to hire a lawyer to make sure it's done correctly.
You should undersand, though, that defendants who miss the deadline and are placed in default have an avenue open to seek relief from the default, and such relief is usually granted upon a modest showing of the cause of the delay.
The situation may lead you to believe you can slam the door on the defendants here, but there is a very high chance that they will still be allowed to litigate.
Re: what happens next if the defandant did not file a response to the statement
Recently, I was asked to defend an estate in a wrongful death action. There are several California statutes that may apply. It is a technical area of the law and space does not permit me to fully address all the issues. If you would like to discuss this matter, please feel free to call me @ (213) 386-6900. Good luck.
Re: what happens next if the defandant did not file a response to the statement
Even if you obtain a default, it no doubt will be set asside once representation is obtained. You would be well served by getting legal counsel, please call me directly at (619) 222-3504.
Re: what happens next if the defandant did not file a response to the statement
You should file a Request for Default. If you are in the Northern California area, I may be able to help you. Feel free to give me a call.
Bryan J. McCormack, Esq.
1255 Columbus Ave, Suite 200
SF, CA 94133
(415) 440-6662
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