BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 702|
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THIRD READING
Bill No: SB 702
Author: Anderson (R)
Amended: 5/14/13
Vote: 21
SENATE JUDICIARY COMMITTEE : 6-0, 5/7/13
AYES: Evans, Anderson, Corbett, Jackson, Leno, Monning
NO VOTE RECORDED: Walters
SUBJECT : Application for entry of default judgment
SOURCE : California Association of Collectors
DIGEST : This bill requires a plaintiffs application for entry
of a default judgment to include specified information, and
authorizes a party that has been permitted by the court to use
affidavits in lieu of personal testimony to use affidavits to
comply with those requirements.
ANALYSIS :
Existing law:
1. Provides that judgment may be had, if the defendant fails to
answer the complaint, as follows:
A. In an action arising upon contract or judgment for
the recovery of money or damages only, if the defendant
has (or if more than one defendant, if any of the
defendants have) been served, other than by publication,
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and fails to respond in one of several specified
manners, the clerk must, upon written application of the
plaintiff and proof of service of summons, file the
default of the defendant(s) so served and immediately
thereafter enter judgment for the principal amount
demanded in the complaint in specified statements, or a
lesser amount if credit has been acknowledged, together
with interest allowed by law or in accordance with the
terms of the contract, and the costs against the
defendant or defendants, or against one or more of the
defendants.
B. In other actions, if the defendant has been served,
other than by publication, and fails to respond in one
of several specified manners, the clerk must, upon
written application of the plaintiff, enter the default
of the defendant. The plaintiff thereafter may apply to
the court for the relief demanded in the complaint. The
court is required to hear the evidence offered by the
plaintiff, and to render judgment in the plaintiff's
favor for that relief, not exceeding the amount stated
in the complaint in specified statements, as appears by
the evidence to be just. If the taking of an account,
or the proof of any fact, is necessary to enable the
court to give judgment or to carry the judgment into
effect, the court is permitted to take the account or
hear the proof, or to, in its discretion, order a
reference for that purpose. If the action is for the
recovery of damages, in whole or in part, the court may
order the damages to be assessed by a jury; or if, to
determine the amount of damages, the examination of a
long account is involved, by a reference as above
provided.
C. In all actions where the service of the summons was
by publication, upon the expiration of the time for
answering, and upon proof of the publication and that
the defendant has failed to respond in one of several
specified manners, the clerk must, upon written
application of the plaintiff, enter the default of the
defendant. The plaintiff thereafter may apply to the
court for the relief demanded in the complaint; and the
court must hear the evidence offered by the plaintiff,
and render judgment in the plaintiff's favor for that
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relief, not exceeding the amount stated in the complaint
in specified statements, as appears by the evidence to
be just. The subdivision provides various other
requirements for the court and the plaintiff for
specified cases.
2. Provides that in cases referred to B and C above, or upon an
application to have attorneys' fees fixed by the court
pursuant to A, the court in its discretion 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 in those cases. The facts stated
in the affidavit or affidavits must be within the personal
knowledge of the affiant and must be set forth with
particularity, and each affidavit must show affirmatively
that the affiant, if sworn as a witness, can testify
competently thereto.
Existing Rule of Court prescribes the forms to be used by a
party seeking a default judgment on declarations. The following
information, among other things, must be included in the
documents filed with the clerk:
except in unlawful detainer cases, a brief summary of the
case identifying the parties and the nature of plaintiff's
claim;
declarations or other admissible evidence in support of the
judgment requested;
interest computations as necessary;
a memorandum of costs and disbursements;
a dismissal of all parties against whom judgment is not
sought or an application for separate judgment against
certain parties under specified laws, supported by a showing
of grounds for each judgment; and
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a request for attorney fees if allowed by statute or by the
agreement of the parties.
This bill:
1. Requires a plaintiff applying for a default judgment to
include the following information in his/her application:
A. The name of the plaintiff.
B. A statement that the plaintiff is the sole party
entitled to the money or damages at issue, or has
authority to assert the rights of all parties entitled to
the money or damages at issue.
C. The amount of the money or damages sought.
D. The amount of costs, if any, sought and the basis
therefor.
E. The amount of attorney's fees, if any, sought and the
basis therefore.
F. A proof of service of summons for each party to be
included in the default judgment.
G. A request to enter default, if not already filed,
pursuant to the above California rule of court.
H. A proposed form of judgment.
I. Any other information required by the court.
2. Specifies the specific type of default judgments that
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affidavits can be used for.
3. Specifies that affidavits will be used only to the same
extent that has been deemed appropriate for these specific
types of default judgments under existing law.
Background
A default judgment is essentially a judgment on the merits in
favor of the plaintiff without a trial and without any defense
or arguments presented by or on behalf of a defendant. Under
the various provisions of Code of Civil Procedure Section 585,
default judgments may be entered upon written application of the
plaintiff where a defendant fails to answer a complaint, as
specified. That section contains different requirements that
must be met before entry of default judgment depending on if the
complaint involves an action arising out of contract or judgment
for the recovery of money or damages, or is related to any other
action. (Compare Code Civ. Proc. Sec. 585(a) to Sec. 585(b).)
That section also provides separate requirements for cases in
which service of summons was made on the defendant by
publication, which provides constructive notice; as opposed to
other forms of service such as, for example, personal service,
which provides actual notice of the summons.
In recent years, a Judicial Council working group has reportedly
sought to address issues relating to the need for
standardization in default judgment applications. In doing so,
that working group specifically examined issues raised by debt
collectors relating to the varying documentation currently
required by different courts when a creditor or collector seeks
a default judgment against a defendant (the debtor) who has
failed to answer their complaint.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 5/14/13)
California Association of Collectors (source)
ARGUMENTS IN SUPPORT : The sponsor of this bill, California
Association of Collectors (CAC), writes:
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CAC has been concerned over the increasing difficulties
faced by our members in processing filings and judgments
in California trial courts. While many of the hurdles in
accessing our courts today are related to the significant
cuts in trial court funding [ . . . ], it is also clear
that in a world where companies and individuals file in
multiple jurisdictions, variations in documentation and
paperwork requirements create delays and confusion.
CAC began discussions with the State Judicial Council
several years ago. As a response, the Judicial Council
set up a Collections Case Management Working Group
representing all stakeholders. SB 702 is intended to
implement some of the ideas discussed, in particular to
provide greater standardization and uniformity with filing
[requirements] in California. We believe that this may
reduce costs, create efficiencies and move cases through
the system in a faster, more efficient manner. The bill
does recognize the right of the individual courts to
maintain any needed variances, but would be a first step
toward more standardization in these filings.
AL:d 5/15/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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