How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask CalAttorney2 Your Own Question
CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10244
Experience:  Civil litigation attorney for individuals and businesses.
Type Your Legal Question Here...
CalAttorney2 is online now
A new question is answered every 9 seconds

Placed in default over a claim for damages, Then plaintiff

This answer was rated:

Placed in default over a claim for damages,
Then plaintiff and attorney did an exparte tro osc preliminary injunction
On some of my business inventory that I've been selling for 2years and is used to pay my lease.

, the judge granted the application but only issued an osc prliminary injunction hearing set a month after the 1st cmc hearing and the day before my motion to vacate set aside default.

Do I have to get out of defult to challenge the osc hearing ?
Can they ask for damages on items they want through an injuntion.
Can I still use or sale inventory if a tro is not granted also no bond posted and has not been served .

William B. Esq. :

Dear Customer, thank you for using our service. My name is XXXXX XXXXX I would like to assist you today.

William B. Esq. :

I am sorry to learn of this situation. You have the right to appear and defend your interests at the Order to Show Cause hearing (even if you are in default, you have a right to defend against the disposal of your assets - even post-judgment debtors can object to levies etc.).

William B. Esq. :

As there is no injunction at this time (the Court denied the TRO), your inventory is at your disposal. This of course does come with the threat of potential "fraudulent conveyance" where you try to move your product for less than fair market value in order to avoid paying your creditors (you do not necessarily have to pay off the plaintiff first, you can pay other creditors before the plaintiff unless the plaintiff has a secured interest in your inventory). And any unusually rapid liquidation in your assets will of course be used against you in the OSC to show why such an injunction should issue pending the remainder of the action. (These are just considerations, nothing more).

William B. Esq. :

I hope the above is helpful, if you have any questions please do not hesitate to let me know and I will follow up quickly.

Thank you for using our service, please do not forget to rate my answer when you are satisfied. I am going to transfer our conversation to the "Q&A" format to ensure you can review the entire response and that I can follow up to any questions you may have quickly. I do wish you the best of luck in this matter.

CalAttorney2 and 6 other Legal Specialists are ready to help you
Customer: replied 3 years ago.

Thank you for the quick response,
Can you clarify if in California after 45 days in default in the civil code of procedures the plaintiff has to ask for default judgment , Can the plaintiff be awarded monetary damages for items he's trying to get in an injunction against , ...
E.g asking for a preliminary injunction "pre" as in before judgment ,
But then asking for a default judgement before trial is this unjust enrichment , Getting paid for the item twice .
The California Rule of Court for taking a default judgment within 45 days after entry of default is 3.110 (h)

I do not know the specifics of your case, but in instances where I have represented a creditor/plaintiff and have been worried about assets disappearing, we would file for a restraining order or injunctive relief to preserve the assets pending trial (commonly done in commercial litigation).

The fact that you are appearing to set aside the default prior to the entry of default judgment does make this type of aggressive litigation tactic legitimate (they will not recover twice), although it is very aggressive (I do not know what the purpose is, some plaintiffs attempt to force a settlement with an aggressive front, while others simply litigate that way.