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Breach of oral contract agreement. I served the defendant but

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Breach of oral contract agreement. I served the defendant but defendant didn't answer, so I filed request for entry for default, and it was entered in the court records.

Now if I understand correctly, the next step would be to file the same form (civ 100) to request for court's judgement. What else do I need to file when I file that document? I understand I need to file a statement of damages? I've seen a form for this but it's for wrongful death/personal injury. I'd like some info on how the process goes from here, and also what documents I might need, and if a statement of damages is indeed required, if possible a link to a sample one.
Submitted: 1 year ago.
Category: Business Law
Expert:  Law Pro replied 1 year ago.

Welcome to JustAnswer! My goal is to do my very best to understand your situation and to provide a full and complete excellent answer for you.

My name is Fred and I'm going to assist you with your question.

Please bear with me if you believe my answer isn’t coming fast enough because I’m also working with other customers too. I apologize for any seemingly late response.



Procedure For Entering a Default:
  • (1) Time Limit: 10 days after the time for service has elapsed. If plaintiff waits longer, the court may enter an Order to Show Cause why sanctions should not be imposed. [CRC 3.110(g)].
  • (2) Make Sure That You Meet All The Requirements for Filing a Default. See above. This includes serving the defendant with the summons, complaint, and statement of damages, and having the defendant fail to respond on time.
  • (3) File an Application For Entry of Default. This should contain the following documents:
    • Request to Entry Default Form (Judicial Council form CIV–100) (including a Declaration of mailing copies to defendant and defendant’s counsel if known);
    • Proof of Service of Summons (unless already filed);
    • Statement of damages and Proof of Service of Statement of Damages.. [CCP § 425.11].
  • (4) Request A Default In One of Three Ways:
    • (a) Request a simple entry of defendant’s default (paragraph 1.a.-c.) – Note that getting a default entered is just the first step in obtaining a default judgement.
    • (b) Request a clerk’s default judgment (paragraph 1.a.-e.) – In some cases, after entry of defendant’s default, the court’s clerk is may enter judgment against the defendant without a court hearing or judicial action of any kind. This is only allowed when (1) The action is one “arising upon a contract or judgment; and (2) the lawsuit seeks recovery of “money or damages only” in a fixed or determinable amount; and (3) defendant was not served by publication. Therefore this option cannot be used in personal injury cases.
    • (c) Request a default judgment hearing by the court (paragraph 1.a.-e.) – In all personal injury cases, and all cases in which defendant was served by publication, plaintiff will need a court judgement. This will require the plaintiff to “prove up” his case – meaning that the plaintiff will have to present evidence to the court, the court will consider the evidence, and then the court will enter a judgement. See more on this process below. [CCP 585; CRC 3.1800]
  • (5) Mail a Copy of the Application for Default to Defendant’s Last Known Address – there is a box on the Request for Entry of Default Judgement that must be filled out indicating that the attorney is mailing a copy of the Request for Entry of Default to defendant’s last known address. It is fine to mail the copy to the defendant the same day the Request is filed with the court.
  • Plaintiff Applies for Judgment

 

Does that answer your question as to how to enter the default judgment?

 

 

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Customer: replied 1 year ago.

This was helpful thanks. I did not submit a statement of damages to the defendant when I mailed him the notice of entry of default. However, the court shows that the request for entry for detault was entered in the court.


 


Your mention of "Statement of damages and Proof of Service of Statement of Damages.. [CCP § 425.11]." as a requirement for the application of entry for default:


http://codes.lp.findlaw.com/cacode/CCP/3/2/6/2/1/s425.11


 


subsection b) and below, seemingly refer to personal injury and wrongful death cases, and does not refer to a breach of contract. Can you clarify your explanations in this light?


 


 

Expert:  Law Pro replied 1 year ago.
I apologize

Here is the info you want:

apologize - yes that was for a personal injury case.

Here are the steps to file when a breach of contract:

Step 1:
Filing the Request for Entry of Default and any accompanying documents
a) File Your Proof of Service, if Necessary
b) File and Serve a Declaration of Venue, if Necessary
c) Complete the Request for Entry of Default (CIV -100)
d) Serve Documents on Defendant
e) Copying and Assembling
f) Filing


Step 1: Filing the Request for Entry of Default and any accompanying documents
a) File Your Proof of Service, if Necessary
If you have not already filed your Proof of Service of Summons (POS-010) showing the date a defendant was served, you must file it with these Request for Entry of Default documents. The Court Clerk cannot enter a default judgment without proof a defendant has not answered within the 30-day time period.

b) File and Serve a Declaration of Venue, if Necessary
If your lawsuit is based upon a retail installment contract subject to the Unruh Act (Civil Code §1812.10), on a financed automobile subject to the Rees-Levering Motor Vehicle Sales and Finance Act (Civil Code §2984.4), or on a loan or other extension of credit primarily for personal or household use (Code of Civil Procedure § 395(b)), you must either verify your complaint or file and serve a declaration of venue.
The declaration of venue must be served upon the defendants like a Summons. If your complaint was not verified and you did not serve the statement of venue you must complete this step at least 31 days before filing the Request for Entry of Default.

c) Complete the Request for Entry of Default (CIV-100)
Type or write your name, address, and telephone number in the box that says "Attorney or Party Without Attorney." Where it says “Attorney for” type or write “In Pro Per,” which means you are representing yourself.
Below that, type or write the name and address of the court: County of Sacramento, 720 Ninth St., Sacramento, CA 95814. The Branch Name is “Civil.”
Beside “Plaintiff/Petitioner” insert your name (as it is written on the Summons and Complaint).
Beside “Defendant/Respondent” insert the Defendant’s name (as it is written on the Summons and Complaint).
In the “Request for (Application)” box check “Entry of Default”.
Type or write your case number in the box provided.
In paragraph 1a, type or write the date the Complaint was filed.
In paragraph 1b, type or write your name (as it is written on the Summons and Complaint).
Check the box in paragraph 1c and type or write the name of the defendant(s) (as it is written on the Summons and Complaint).
Leave paragraph 2a through 2f blank.
Skip paragraph 3, but type or print your name, date, and sign on the lines provided for this purpose in the area above the “For Court Use Only” box.


On the top of the second page, type or write the plaintiff’s and defendant’s
names and the Case number in Caption box.
Check the box next to “did not” in paragraph 4.
Check the box next to paragraph 5 and the appropriate box next to 5a, 5b, or 5c, indicating whether your action “is” or “is not” on a retail installment contract subject to the Unruh Act (Civil Code §1812.10), on a financed automobile subject to the Rees-Levering Motor Vehicle Sales and Finance Act (Civil Code §2984.4), or on a loan or other extension of credit primarily for personal or household use Code of Civil Procedure § 395(b).
Check the box next to paragraph 6b, then type or write the date of mailing and the name of the defendant and the address to which a copy of this Request for Entry of Default will be mailed (this address should match the address where the Process Server served the defendant).
Type or print your name, date and sign on the lines provided for this purpose in the area below paragraph 6. By doing so, you are declaring under penalty of perjury that the information given in paragraphs 4, 5, and 6 are true.

In paragraph 7, type or write the amount you paid for filing fees and process server fees in the space provided. Typically those are the only allowable costs at this early stage of a lawsuit (see Code of Civil Procedure §1033.5). Type or write the total of these fees in paragraph 7e. If your fees were waived, check the box next to 7f and do not enter amounts. Type or print your name, date and sign on the lines provided for this purpose in the area below paragraph 7. By doing so, you are declaring under penalty of perjury that the information given in paragraph 7 is true.
Check the box next to paragraph 8 if the defendant is not in the military. If the defendant is in the military, he or she is entitled to the benefits of the Servicemembers Civil Relief Act, and the court will not enter a default judgment unless and until it has this declaration on file. Type or print your name, date and sign on the lines provided for this purpose in the area below paragraph 8. By doing so, you are declaring under penalty of perjury that the information given in paragraph 8 is true.

d) Serve Documents on Defendant
The court requires a separate Proof of Service by Mail (POS-030) form to be completed by the person who mails the Request for Entry of Default to the defendant. This person must be over the age of 18 and not a party to your action.


e) Copying and Assembling
Make two copies of each:
Proof of Service of Summons (POS-010 if applicable)
Request for Entry of Default (CIV-100)
Proof of Service by Mail (POS-030)


That should do you.
Customer: replied 1 year ago.

Well, I appreciate the answer, but that's everything I've done so far.


 


What I need to know is the second step on this process, which is how to file a Request for Court Judgement (for default), which from my understanding is the same civ100 form but check marked with a different box. I need to know the process/documents from here, and specifically on the statement of damages.

Expert:  Law Pro replied 1 year ago.
Completing the Request for Entry ofCourt Judgment (CIV-100)

Type or write your name, address, and telephone number in the box that says
"Attorney or Party Without Attorney." Where it says “Attorney for” type or write “In Pro Per,” which means you are representing yourself.

Below that, type or write the name and address of the court.
Beside “Plaintiff/Petitioner” insert your name (as it is written on the Summons and Complaint).

Beside “Defendant/Respondent” insert the Defendant’s name.

In the "Request for(Application)” box check “Court Judgment.”
Type or write your case number in the box provided.

In paragraph 1a, type or write the date the Complaint was filed.
In paragraph 1b, type or write your name.
Check the box in paragraph 1d and type or write the name(s)
of thedefendant(s)(as it is written on the Summons and Complaint).

If the default was previously entered insert the date of entry in box 1e(3).

In paragraph 2a, type or write the amount demanded in the Complaint in the
space provided. Skip paragraphs 2b.

In 2c insert the amount of interest accrued from the date of filing the complaint
until the date in which you are completing this form.

You may use the judgment calculator at http://www.thelegalprocess.com/judgmentcalculator.htm to help with this step.

Simply follow their instructions.

In paragraph 2d, type or write the amount of your total Court Costs. These
include filing fees and process server fees (paragraph 7 is an itemization of thesecosts; it may be easier to complete paragraph 7 before completing paragraph 2d). If these fees were waived do not enter them.

In paragraph 2f, type or write the total of the amounts in paragraphs 2a, 2c
and 2d.

Skip paragraph 3, but type or print your name, date and sign on
the lines provided for this purpose in the area above the “For Court Use Only”
box.

Check the box next to paragraph 5 and the appropriate box next to 5a, 5b, or 5c, indicating whether your action “is” or “is not” on a retail installment contract subject to the Unruh Act (Civil Code §1812.10), on a financed automobile subject to the Rees-Levering Motor Vehicle Sales and Finance Act (Civil Code §2984.4), or on a loan or other extension of credit primarily for personal or household use Code of Civil Procedure § 395(b).

Check the box next to paragraph 6b, then type or write the date of mailing and the name of the defendant and the address to which a copy of this Request for Entry of Default will be mailed (this address should match the address where the Process Server served the defendant).

Type or print your name, date and sign on the lines provided for this purpose in the area below paragraph 6. By doing so, you are declaring under penalty of perjury that the information given in paragraphs 4, 5, and 6 are true.


In paragraph 7, type or write the amount you paid for filing fees and process server fees in the space provided. Typically those are the only allowable costs at this early stage of a lawsuit (see Code of Civil Procedure §1033.5) Type or write the total of these fees in paragraph 7e. If your fees were waived, check the box next to 7f and do not enter amounts. Type or print your name, date and sign on the lines provided for this purpose in the area below paragraph 7. By doing so, you are declaring under penalty of perjury that the information given in paragraph 7 is true.

Check the box next to paragraph 8 if the defendant is not in the military. If the defendant is in the military, he or she is entitled to the benefit of the Servicemembers Civil Relief Act, and the court will not enter a default judgment unless and until it has this declaration on file. Type or print your name, date and sign on the lines provided for this purpose in the area below paragraph 8. By doing so, you are declaring under penalty of perjury that the information given in paragraph 8 is true.

Completing Your Declaration In Support of Application for Default Judgment Pursuant to CCP § 585(d)

The California Code of Civil Procedure section 585(d) provides that the court “may permit the use of affidavits, in lieu of personal testimony, as to all or any part of the evidence or proof required or permitted to be offered, received, or heard . . . . The facts stated in the affidavit or affidavits shall be within the personal knowledge of the affiant and shall be set forth with particularity, and each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto.”
You must provide clear and concise evidence of every element in your cause of action to prove to the judge why you deserve a judgment. For example, if your cause of action is for negligence, you must prove:
Element 1. That the defendant owed a duty to the plaintiff; Element 2. That the defendant breached that duty; Element 3. That you (the plaintiff) were harmed; and Element 4. That the defendant’s negligence was a substantial factor in causing your harm.

In your case - a breach of contract case: Element 1. There was a contract. 2. That defendant breached that contract. And 3) That you incurred damages.

Completing the (Proposed) Judgment (JUD-100)

Type or write your name, address, and telephone number in the box that says "Attorney or Party Without Attorney." Where it says “Attorney for” write “In Pro Per,” which means you are representing yourself.

Below that, type or write the name and address of the court: ______________________________.
The Branch Name is “Civil.”

Beside “Plaintiff” insert your name (as it is written on the Summons and Complaint).

Beside “Defendant” insert the Defendant name(s) (as it is written on the Summons and Complaint).

In the “Judgment” box check “By Court” and “By Default.”

Type or write your case number in the box provided.

Check the box next to paragraph 1, marked “By Default.” Check the box next to 1e marked “Court Judgment,” and 1e(2), “Plaintiff’s written declaration pursuant to CCP §585(d).”



Does that answer you?

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