The 10
Commandments of
Obtaining a
Default Judgment
(Part 1)
Greg Groeneveld. Attorney Action Club
February 20, 2014
Greg@GregGroeneveldLaw.com
I. Thou shalt KNOW THINE ENEMIES’
NAMES AND SEEK JUDGMENT AGAINST
THEM IN ALL THEIR FORMS
• How many of you have judgments you have
never collected a penny on ?
• How many of those judgment would be
collectable if you were able to add the right
judgment debtor?
• We talked a lot about this in my CLE on
Making Judgments Collectable
Greg Groeneveld. Attorney Action Club
February 20, 2014
Thou shalt KNOW THINE ENEMIES’ NAMES
AND SEEK JUDGMENT AGAINST THEM IN ALL
THEIR FORMS
• " I've seen way too many defaults J's against defunct or
suspended corporations, w/ no assets to go after. The
prevailing attorney failed to find a way to actually
name a human being as Defendant in addition to the
corp, in order to increase the odds of actually enforcing
the J.
• I know it's not always possible to name a human being,
but for many attorneys it's real easy to get a shiny new
default J against a corp. The attorney gets paid their
money, but that J may not be worth anything to the
Plaintiff." -- Ran Bush - Applied Judicial Research
Greg Groeneveld. Attorney Action Club
February 20, 2014
II. Thou shalt KNOW THINE ENEMIES’ NAMES
AND SEEK JUDGMENT AGAINST THEM IN ALL
THEIR FORMS
• "I suggest to attorney's to sue owners of entities
as well as the entity as it forces the owners to
come to court to protect themselves, thus, no
default
• Record an abstract of the judgment then have a
certified copy served on the JD to prove
knowledge of the judgment (after 120 days is it
hard to win a MTV based upon lack of service or
knowledge" WALTER STEINMANN AKA Mr Meany
Greg Groeneveld. Attorney Action Club
February 20, 2014
Thou shalt serve a statement of damages
on thine enemies OR STATE THY DAMAGES
WHERE SO REQUIRED
• Required for personal injury and wrongful
death actions. Interpreted broadly to include
actions in which injury or death claims are
closely tied to whatever other relief is
requested. Jones v. Interstate Recovery Service
160 Cal.App.3d 925, 930, (1984)
• (Judicial Council Form Civ-050)
Greg Groeneveld. Attorney Action Club
February 20, 2014
Thou shalt serve a statement of damages on
thine enemies OR STATE THY DAMAGES WHERE SO
REQUIRED
• It is a good idea to include a statement of
damages with every application for a default
judgment (or at least check to be sure the
complaint specifically alleges the amount of
damages sought). Including the separate
statement avoids uncertainty as to whether
the complaint falls in one of the categories
requiring a separate statement of damages
Greg Groeneveld. Attorney Action Club
February 20, 2014
Thou shalt serve a statement of damages on
thine enemies OR STATE THY DAMAGES WHERE SO
REQUIRED
• Before a default may be entered, plaintiff
must serve defendant with a “statement of
the nature and amount of damages sought.”
CCP § 425.11(b) Service after default entry but
before prove-up is not sufficient
Greg Groeneveld. Attorney Action Club
February 20, 2014
Thou shalt serve a statement of damages on
thine enemies OR STATE THY DAMAGES WHERE SO
REQUIRED
• Even required where default ordered as
discovery sanction
Greg Groeneveld. Attorney Action Club
February 20, 2014
Thou shalt serve a statement of damages on
thine enemies OR STATE THY DAMAGES WHERE SO
REQUIRED
• Required for defaulting cross defendant. Plaintiff's
service of a § 425.11 statement of damages does not
satisfy the statute as to a codefendant's indemnity or
contribution claim against the defaulting defendant. A
CCP § 425.11 notice is required even where there has
been no settlement and the cross-complainants
therefore do not know the precise amount of damages
for which indemnity is sought against the defaulting
defendant. In such a case, the CCP § 425.11 notice
should estimate the amount of damages that Plaintiff
may recover. Schwab v. Southern Calif. Gas Co.114
Cal.App.4th at 1326
Greg Groeneveld. Attorney Action Club
February 20, 2014
Thou shalt serve a statement of damages on
thine enemies OR STATE THY DAMAGES WHERE SO
REQUIRED
• The amount of damages must be stated in the
complaint or the default judgment is void.
Even though a Statement of Damages is
served. Levine v. Smith 145 Cal.App.4th 1131,
1137(2006)
• Forma super Substantia was the Levine court’s
motto. TERRIBLE opinion but we have to live
with it.
Greg Groeneveld. Attorney Action Club
February 20, 2014
Thou shalt serve a statement of
damages on thine enemies OR STATE THY
DAMAGES WHERE SO REQUIRED
• The take away is probably to think of enforcing
the judgment before you take the default.
• It may make sense to included damages in the
prayer even if you think a statement of damages
may be more appropriate but also to serve the
statement of damages with the complaint making
sure that what you say in each is identical.
• An enforceable judgment is, ultimately, the only
thing you are looking for in litigation but, I think it
may be something we don’t pay nearly enough
attention to.
Greg Groeneveld. Attorney Action Club
February 20, 2014
III. Thou shalt HEED THE ADVICE OF THE
WISE PROCESS SERVER (Anne Vode)
• Anne Vode (Mercury Investigations) will call
me and suggest I serve a statement of
damages with the complaint if the service is
going to be difficult. If defendant has not
appeared in the action, the CCP § 425.11
statement of damages must be served “in the
same manner as a summons” (i.e., personal
service). CCP § 425.11(d)(1)
Greg Groeneveld. Attorney Action Club
February 20, 2014
Thou shalt HEED THE ADVICE OF THE
WISE PROCESS SERVER (Anne Vode)
Anne will actually take pictures of the person as
she is serving them. I love her work.
Greg Groeneveld. Attorney Action Club
February 20, 2014
IV. Thou shalt TAKETH DEFAULT ONLY WHEN thine
enemies HAVE BEEN WHOLLY UNCLEAN IN THE COURT'S
SIGHT
• Courts have held that there is an ethical duty
to warn your opponent. Fasuyi v. Permatex,
Inc. 167 Cal. App. 4th 681, 702 (2008).
• Everyone I have talked to has had a righteous
default set aside.
Greg Groeneveld. Attorney Action Club
February 20, 2014
Thou shalt TAKETH DEFAULT ONLY WHEN thine enemies
HAVE BEEN WHOLLY UNCLEAN IN THE COURT'S SIGHT
 Proving up a default can be a pain in
the
and are often set aside so don't take
them if you don't have to.
Greg Groeneveld. Attorney Action Club
February 20, 2014
V. Thou shalt MAKE PRAISEWORTHY SERVIVCE AND
PROVIDE THINE ENEMIES WITH OPPORTUNITY TO REPENT
THEIR FAILURE TO APPEAR
• "Make sure that service is good, as in perfect-good, as in nopossible-question-at-all that it is good."
• Make sure that the proof of service is excruciating[ly] well
documented -- you simply can't document this enough, and make
sure that all the documentation is filed with the Court and makes it
into the Court's file and docket sheet, recalling that fights to set
aside judgments often devolve to ONLY what is in the debtor's file.
• Give as much notice to the debtor about the default as possible,
and as frequently as possible; don't just stand on the minimum
required. You want the attorney to later testify: "We called the
debtor to advise of the default, we faxed the debtor to advise of the
default, we e-mailed the debtor to advise of the default, we sent a
process server out to smack the debtor over the head with the
default, but nonetheless, the debtor did nothing and slept on his
rights, only to wake up and try to complain now." -- Jay Adkisson,
Esq
Greg Groeneveld. Attorney Action Club
February 20, 2014
Thou shalt MAKE PRAISEWORTHY SERVIVCE AND PROVIDE
THINE ENEMIES WITH OPPORTUNITY TO REPENT THEIR
FAILURE TO APPEAR
• "Air tight service: have the RPS include supporting evidence such as
photos and gps documentation of service and a full statement of
the events during service. Include how many times service was
attempted and what information was relied on that the address
was correct.
• Evidence to support case: even if it's knowingly going to be a
default judgment, make sure any evidence that can be included can
be. Don't wait for an appeal or retrial to bring in good evidence
that was already available.
• Hire a investigator to confirm the facts, such as address, phone
numbers, photo of defendant name of business and it's formation
status.
• "This is all text book stuff and nothing new to you, but it's amazing
how many attorneys and law firms ignore this." John Schmidt JCS
Associates
Greg Groeneveld. Attorney Action Club
February 20, 2014
Thou shalt MAKE PRAISEWORTHY SERVIVCE AND PROVIDE
THINE ENEMIES WITH OPPORTUNITY TO REPENT THEIR
FAILURE TO APPEAR
• "Pictures work. Example: Defendant in UD claimed he was never served
the Notice to Terminate after Foreclosure. I served it. The attorney had
me go to court with her on his Motion to Set Aside. As the Judge was
getting ready to set aside the Default on the UD, I produced photographs
of the notice securely taped to the defendant's entry gate. He would have
had to cut it off in order to get to his house and the mailed copy had not
been returned to our office. The Judge did a 180 degree turnabout and
ordered the issuance of the Writ of Possession immediately. She also
admonished him for lying to her.
• 2) Also, to add to Jay's comments: Get copies of everything you can from
your process server: Field notes, photos, anything. Also verify that the
person who served the document was registered on the day of the service
(get a copy of their registration and bond). Evidence Code 647 puts the
burden of proof on the defendant to prove that he wasn't served rather
than on your server to prove that he was if the service was performed by a
Registered Process Server." Michele Dawn RPS#117 and CA PI#24790
• RANCHO ATTORNEY SERVICE
Greg Groeneveld. Attorney Action Club
February 20, 2014
Thou shalt MAKE PRAISEWORTHY SERVIVCE AND PROVIDE
THINE ENEMIES WITH OPPORTUNITY TO REPENT THEIR
FAILURE TO APPEAR
• Cal. Evid Code 647 “The return of a process
server registered pursuant to Chapter 16
(commencing with Section 22350) of Division
8 of the Business and Professions Code upon
process or notice establishes a presumption,
affecting the burden of producing evidence, of
the facts stated in the return.”
Greg Groeneveld. Attorney Action Club
February 20, 2014
Thou shalt MAKE PRAISEWORTHY SERVIVCE AND PROVIDE
THINE ENEMIES WITH OPPORTUNITY TO REPENT THEIR
FAILURE TO APPEAR
• Get a recent picture of the person to be
served if possible and give it to your process
server
Greg Groeneveld. Attorney Action Club
February 20, 2014
ENFORCING THE JUDGMENT IS A CRUCIAL PHASE IN THE
LITIOGATION
• As we all know, litigation can be expensive and
time-consuming. Obtaining a judgment you are
not able to collect, regardless of how you
obtained it, is disastrous for you and your client.
Think about collection when you draft your
complaint, when you serve your complaint ( and
your statement of damages) and when you set up
your default judgment to be collectible. Give the
defendant so much notice and opportunity to
cure that the judge will gag at the thought of
letting them get away with ignoring the court
system.
Greg Groeneveld. Attorney Action Club
February 20, 2014