“Technically, defendants are ‘in default’ if they fail to file an answer, demurrer or other permitted response within the time allowed by law and without a court order excusing such filing. By itself, being ‘in default’ has no legal consequences because defendant can still appear in the action until the clerk has entered defendant’s default. Thus, even though the time to respond has expired, if no default yet has been entered, defendant can file a pleading or motion. The court clerk cannot refuse to accept it for filing merely because the time to respond has expired.”
“Entry of Default by Court Clerk [] is the procedure that establishes defendant’s default: a formal entry by the court clerk. Such entry does not happen automatically. Rather, plaintiff must request the court clerk to make such entry within 10 days after expiration of the defendant’s time to file a responsive pleading, and the request must be supported by proper documentation. If all is in order, the court clerk “enters” the default by signing the appropriate box on the request form. Entry of defendant’s default instantaneously cuts off its right to appear in the action. The defendant is “out of court.” It has no right to participate in the proceedings until either (a) its default is set aside (in which event, it may respond to the complaint), or (b) a default judgment is entered (in which event, it may appeal). Entry of default deprives the court of jurisdiction to consider any motion other than a motion for relief from default. By defaulting, defendant is deemed to admit the material allegations of the complaint for purposes of the action.”
“In addition, within 45 days after entry of default, plaintiff must obtain a default judgment against the defendant unless the court grants an extension of time.”
“In certain cases, after entry of defendant’s default, the court clerk is authorized (upon request by plaintiff) to enter judgment against the defendant without a court hearing or judicial action of any kind. Entry of default judgment by the court clerk is authorized only if: The action is one ‘arising upon [a] contract or judgment‘; [s]eeks recovery of ‘money or damages only’ in a fixed or determinable amount; and Defendant was not served by publication.” Allowing the court clerk to enter an immediate default judgment against the defendant is akin to a grant of judicial power. Hence, the requirements are very strictly construed.”
“Plaintiff is required to ‘prove up’ the default (i.e., present evidence to a judge) to obtain a default judgment in any case other than those in which a clerk’s default judgment is allowed . Thus, a court judgment is required in the following kinds of cases: Cases not ‘arising upon contract or judgment’; ‘Contract or judgment’ cases where the relief sought is not a fixed or determinable amount of money or damages; and cases in which defendant was served by publication.“
“[T]here may be a lot of work involved in preparing a case for default “prove-up.” That time and effort will be wasted if the court later grants relief from default, and a motion for such relief is likely where defendant is represented by counsel. Therefore, consider asking defendant’s counsel whether he or she intends to file a CCP sec. 473 motion before preparing for the default hearing. If defense counsel delays taking steps to have the default set aside even after receiving your inquiry, the court may take that into account in deciding whether to grant relief.”
“When seeking a default judgment from the court based on declarations (as distinguished from live testimony), plaintiff must include the following in the documents filed with the clerk: A brief summary of the case identifying the parties and the nature of plaintiff’s claims; Declarations or other admissible evidence in support of the judgment requested; Interest computations as necessary; A memorandum of costs and disbursements; A declaration of nonmilitary status for each defendant against whom judgment is sought; & A proposed form of judgment. [The court has discretion to allow declarations in lieu of personal testimony at the default “prove-up” hearing; [but i]n a few cases, special statutes apparently require live testimony at the “prove-up” hearing.]”
“Live testimony is required in a few cases. In addition, even where proof by declaration is the norm, the court always has discretion to require live testimony and may do so in cases involving substantial credibility issues such as claims for damages for personal injury or wrongful death. The court has discretion to consider hearsay testimony given by a live witness at a default ‘prove-up’ hearing. Hearsay received without objection is competent to support a judgment [and defendant is not present to object].”
[California Practice Guide: Civil Procedure Before Trial [citations to primary sources omitted]]
