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Finding out about entry of defoult a week before comensment of trial in CA!

Finding out about entry of defoult a week before comensment meshuggah07/16/17
We need a little bit more information. The default was enter therewillbeblood07/16/17
You need to find out the date the default was entered, and t jeffm07/16/17
The Trial starts next week. The default was entered in May. meshuggah07/16/17
Ok, I am very confused here. What is the trial on if there's therewillbeblood07/16/17
I am not sure OP knows what is going on and if he is a lawye vohod07/16/17
There are multiple defendants, one is in default. meshuggah07/16/17
The default defendant was served propely there is no excuse meshuggah07/16/17
Your characterization of the judge's comments make no sense therewillbeblood07/16/17
No answer filed. If you are in default means you don't go to meshuggah07/17/17
Ahhhh, ok, that makes a LOT more sense. So you're showing up therewillbeblood07/17/17
If you represent one of several defendants, and your client guyingorillasuit07/17/17
Hi, I was thinking exactly the same. We can't appear on t meshuggah07/17/17
Damn dude, I'm not in your jurisdiction so my advice would b isthisit07/17/17
^ This if the amount in controversy is high enough. I can jeffm07/17/17
meshuggah (Jul 16, 2017 - 2:59 pm)

Finding out about entry of defoult a week before comensment of trial in CA! What can be done or its better to try to settle and beg plaintiff's attorney to do so?

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therewillbeblood (Jul 16, 2017 - 3:32 pm)

We need a little bit more information. The default was entered, and the case just went on normally? Did the other side act like they expected to go to trial? If so it doesn't sound like a big deal.

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jeffm (Jul 16, 2017 - 6:54 pm)

You need to find out the date the default was entered, and then, you need to find out whether the court can still set it aside, or whether the deadline had passed. Courts, at some point, lose jurisdiction to vacate and modify their orders. For example, in Texas, a court cannot vacate or modify a final judgment beyond 30 days after its date of entry. With some exceptions, you are almost powerless to resist after that. If you are up a creek without a paddle, then, you need to look at things like a bill of review, which may be known by a different name in CA.

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meshuggah (Jul 16, 2017 - 9:48 pm)

The Trial starts next week. The default was entered in May. We had our final status conference and I argue the default to be set aside the Judge said sorry no, we are going to trial as set.

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therewillbeblood (Jul 16, 2017 - 10:11 pm)

Ok, I am very confused here. What is the trial on if there's a default entered? Damages?

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vohod (Jul 16, 2017 - 10:23 pm)

I am not sure OP knows what is going on and if he is a lawyer he really misstepped taking the case on now.

If he is pro se in family or civil court then his best hope is to see if an attorney will take the matter and get the judge to continue the trial in light of OP now being represented.

Many judges do want to hit the merits of liability and/or damages and will avoid use of default unless default becomes necessary to prevent stall tactics (especially by pro ses).

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meshuggah (Jul 16, 2017 - 10:30 pm)

There are multiple defendants, one is in default.

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meshuggah (Jul 16, 2017 - 10:32 pm)

The default defendant was served propely there is no excuse to set aside the default. Negligence by the default party. I'm GC for the default party.

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therewillbeblood (Jul 16, 2017 - 10:48 pm)

Your characterization of the judge's comments make no sense though -- setting aside a default judgment doesn't stop you going from trial (it actually means the opposite).

And a case status conference is not the place to request a default be set aside. You want to get something on the record, preferably a written motion setting forth why your client didn't respond. Negligence is not that big a deal; the courts routinely set aside default judgments because someone made a mistake.

Did you ever file an answer to the complaint? If not that is something you need to get filed I would think.

No offense, but I have to ask, when did you become licensed to practice?

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meshuggah (Jul 17, 2017 - 3:20 am)

No answer filed. If you are in default means you don't go to trial. You go to trial when the default is set aside and you loose, because you can not present any evidence, witnesses etc. because you have missed all deadlines. Only if the Judge grants an extension then you can prepare for it. In my case the Judge was clear, trial goes as set in the calendar, no extensions.

Settlement in the meantime is the only solution. Plaintiff attorney is willing to negotiate and settle because he doesn't want the hassle of collecting a judgment.

The rest of the story is below.

Thanks. 2013 I don't have trial experience.

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therewillbeblood (Jul 17, 2017 - 8:43 am)

Ahhhh, ok, that makes a LOT more sense. So you're showing up to stuff to try and help your client but you're not really part of the whole process.

Yeah, if you can settle then that's probably for the best. Though I still think -- and maybe a California practitioner can give better advice -- you should serve an answer to the plaintiff and file something on the docket renewing your motion to vacate the default (these are like 2 page motions in my jurisdiction). That might give you a tiny bit more leverage when you talk settlement ("dude, I would love to settle this, I'm just serving/filing this stuff in case we can't come to a settlement and have to appeal").

But I've never been in this situation and never practiced in your jurisdiction so take it with a grain of salt.

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guyingorillasuit (Jul 17, 2017 - 12:17 am)

If you represent one of several defendants, and your client is in default, I do not think you can appear at trial as counsel for a defaulted party. I would imagine that the employees of your client can still testify as witnesses for a non-defaulted party, to the extent that their testimony is relevant. However, judgment can be entered against your client, and your client may not be able to say anything in its defense. That is what I am gathering from what you've said, and I may be totally wrong if I am misunderstanding the facts and procedural posture.

I would seek help from someone in your jurisdiction with trial experience. You may still be able to salvage something, or at least prepare the record for an appeal.

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meshuggah (Jul 17, 2017 - 3:11 am)

Hi,

I was thinking exactly the same. We can't appear on trial. We can't have any evidence, witnesses etc. Unless we settle before the trial I think it can become a financial disaster for the Company.

The background history is:
My company was brought to an action as one of the Doe defendants. We got served in March through our agent. For some mysterious reason the papers served did not come to me. In May the default was entered. The only reason I found out about that is a friend in a law firm called me and asked me if I'm going to trial? I was "what", and then I looked up at the Court website were I saw Final status conference last Friday July 14, trial date July 24.I appeared at the conference and try to salvage the situation. I explained to the Judge the situation and asked to set aside the default. The Judge was very clear the trial is on and all deadlines are missed for motions, discovery etc.

Now what. There is no time to file Motion to set aside the default. I was thinking the only good move is settlement or ex parte application. I'm in CA.

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isthisit (Jul 17, 2017 - 8:57 am)

Damn dude, I'm not in your jurisdiction so my advice would be to consult with experienced litigation OC to give you practical next steps ASAP. Possibly even take over the case.

Litigation is a skill set you don't seem to currently have. No shame there, it's just a different beast. Get OC to takeover for you. If your CEO is too cheap to shell out than tell him you have to settle. Also institute new procedures concerning receipt of outside legal documents and how to funnel them to legal.

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jeffm (Jul 17, 2017 - 9:26 am)

^ This if the amount in controversy is high enough.

I can't imagine a scenario where you would NOT file a formal motion to set aside the default and set it for hearing. If you don't do that and get a ruling at the hearing, you lose the right to appeal the judge's refusal to set it aside.

On appeal, probably the leading cause of reversal is a default judgment. You don't want to just sit back and accept the fact that you've lost.

I don't think you need trial counsel as much as you need appellate counsel to immediately start preserving all the error you can for appeal.

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