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TexLaw
TexLaw, Attorney
Category: Business Law
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Experience:  Internationational Commercial Attorney
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Can a default judgement be upheld piecemeal?

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I filed for a default judgement, OP filed for motion to vacate. In the original complaint there were 8 causes of action. The oral arguments are coming up soon. In the event that the judge is leaning towards vacating the judgement, is it possible to request piece meal to maintain the default on certain causes of action and not others? Amongst the causes of action is breach of contract, and one cause in particular is to rule on a non-compete clause as invalid, and even if I have to fight on the breach of contract, would it be possible to request the judge to maintain the default on the non-compete?

Hi,

Thank you for your question.

The reasons supporting vacating a judgment after a default will apply to the entire judgment. Thus a request to the court that the judgment be preserved on some parts is not going to be effective, as the reason that the judgment would be vacated should apply to the entire judgment in a default situation.

If this were a regular judgment, then this argument would make more sense.

Why do you believe that there are parts of the judgment that should not be vacated versus the other parts that might?

What is the OP's argument for vacating the judgment?
Customer: replied 4 years ago.

I think that under 473(b) the excuse needs to be reasonable and there is a meritorious defense. In the case of the non-compete, they would not have a defense for its validity since California law invalidates nearly all non-competes. So, I was thinking in a worse case scenario if the judge decides to grant the motion to vacate the default, I could 'salvage' the default that the non-compete agreement is invalid because there is no meritorious defense on that issue.


 


OP argues that he did not believe service of process was proper so he did not answer. He admits receiving service but thought that since some of the claims in this action were also being litigated in another state, then he didn't need to answer.

Well, if he admits that he received service, then he doesn't really stand a chance here, as his thoughts that he did not need to answer is not legally sound.

I'm a bit unsure on what the judgment states though. Is there a declaration that the non-competition agreement is invalid in the judgment?
Customer: replied 4 years ago.

We only have the entry of request for judgment so far. The actual prove up hearing will be next week where the actual judgment will be decided.

I see.

I think at this point your strongest argument is simply that there is no reasonable explanation as to why an answer was not filed in a timely manner.

The only portion of the judgment that has been granted is that there is liability against the Defendant, and now you are going to establish what your damages are.

So, if there is no declaratory statement in the judgment, then I'm not sure that there is any "peicemeal" portion of the judgment to preserve.
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