Alameda County Superior Court
Civil Court Self Help - Landlord/Tenant

What happens if the defendant doesn’t answer

1. The Defendant’s rights
2. How to figure out the defendant’s deadline to respond
3. Ask for a defendant’s default
4. When to ask for a default judgment for restitution of the premises
5. Ask for a clerk’s judgment
6. Ask for money damages

 

1. A Defendant’s Rights
    
• Time limits:
  
  All defendants have 5 days to file a response after they have been served with the summons and complaint.
   
• Different deadlines
  
  Each defendant may have a different deadline to answer. They might have been served on different days or in different ways. YOU have to keep track of the deadline for every defendant.
   
• How do I know if a defendant responded?
  
  When a defendant files a response, they have to send you a copy of the response. They should mail it to the address you put on the complaint. But, the only way to make sure is to go to the court and look at the court file.
   
• Late responses:
  
  If the defendant missed the deadline to respond, they can file a late response. The defendant can not do this if you already applied for a default.
  
  If the defendant files a response on the same day you file your application for default, the court will accept the one that is filed first. If you file your application first, the court enters default and rejects the defendant’s response. If the defendant files first, the court denies your application for default and the case moves forward.
   
• Separate defaults:
  
  If you want to ask for a default, you can treat every defendant separately. If one defendant missed the deadline to respond, but another still has time left, you can ask for a default for the defendant who missed the deadline. Or, you can wait all the deadlines to pass. Then you can ask for a default for the defendants that don’t answer.
• What if the defendants don’t answer?
  
  If the defendants don’t answer, file a:
   
• Request for Entry of Default,
• Request for a Clerk’s Judgment for restitution of the property, and
• Request for a Court Judgment for money damages.

top of page

2. How to figure out the Defendant’s Deadline to Respond
    
• Start of response period:

The defendant’s deadline to answer starts on the day after the day they were served. 

• Personal service:
  
  Personal service is the day the defendant gets the papers. If the defendant gets the summons and complaint on the 1st, the 5-day period to answer starts on the 2nd and ends on the 6th. You can file for default on the 7th.
   
• Other types of service:
  
  Substitute service and service by posting and mailing don’t end until 10 days after the server sends the papers. If the server mails the papers on the1st, the service period doesn’t end until the 11th. The 5-day period to answer starts on the 12th and ends on the 16th. You can file for default on the 17th.
   
• Holidays and weekends:
  
  Weekends and holidays count as days unless it’s the last day to respond. If the defendant gets the summons and complaint by personal service on a Monday, the 5th day to respond is a Saturday. So, the defendant has until Monday to respond. You can file for default on Tuesday.

top of page

3. Ask for a Defendant’s default
      
• Timing:
  
  You can ask the court to enter the defendant’s default if they missed the deadline to file a response.
   
• Fill out the form:
  
  Use Form 982(a)(6). Fill out the form, sign and date.
   
•  File and serve:
  
  You have to file the Request for Entry of Default in the Clerk’s office. And you have to mail a copy to every defendant. Serve the defendant at the address where they got the summons and complaint. You can ask the Clerk to file your form while you wait.
• What the clerk does:
  
  The Clerk looks at the proof of service of the summons and complaint. The clerk has to make sure the defendant missed the day to answer. The Clerk looks in the court file to make sure that the defendant didn’t file a response.
  If they didn’t, the Clerk will enter the defendant’s default. 

·         Effect of default:

If the court enters the defendant’s default, the defendant can’t fight your request for a judgment. This doesn’t mean you’ll win automatically.
Another defendant can file a response. Then you’ll have to prove your case. Even if all the defendants default, you won’t win money unless you prove your case. You can prove your case using sworn declarations or testimony.

 top of page

4. When to ask a default judgment for restitution of the premises
    
• If some of the defendants respond:
  
  If some of the defendants answer, you can not get a default judgment until you prove your case against the defendants that responded.
   
• If you didn’t serve the people who aren’t named:

If you don’t serve the people who aren’t named, you can ask for a default judgment for restitution of the premises after you have the default of all of the named defendants. 

• If you served the people who aren’t named:

If you served the people you didn’t name with a summons, complaint, and prejudgment claim of right to possession, you have to wait until you have the default of all the named defendants. And you have wait for the deadline for the people not named in the complaint to file a claim. The people you didn’t name have 10 days from the day they get the papers to file a prejudgment claim of right to possession.

top of page

 

5. Ask for a clerk’s judgment 
    
• Fill out the form:
  
  Use Form 982(a)(6). Fill out the top left side of the form, sign and date.
• Same form:
  
  In a lot of cases, you can ask for a Clerk’s Judgment at the same time as a default.
  
  For example, if you don’t serve the people you didn’t name, AND you ask for default for ALL of the defendants you named, you can ask for a Clerk’s Judgment at the same time. You can use the same form.
   
• Clerk’s judgment:
  
  You have to suggest a judgment to the clerk. There’s no official form. You can buy an unofficial form and use it. Look up Legal Forms in the Yellow Pages.
  
  If you want, you can write your own Clerk’s Judgment. You have to use pleading paper. The judgment has to follow the format in Rule 201(e).
  
  The judgment has to say:
   
• The names of every plaintiff
   
• The names of every defendant the judgment’s against
   
• The address of the property
   
• That the plaintiffs will “have and recover the restitution and possession of the premises from the defendants”. This means that the plaintiffs will get the property back.
   
• A place for the Clerk to sign and write the date
   
• If you served people you didn’t name with the summons, complaint and Prejudgment Claim of Right to Possession, the Clerk’s Judgment has to say that it “includes all tenants, subtenants, named claimants, and other occupants”. This will keep someone who’s not named from filing a Post-Judgment Claim of Right to Possession
   
• Don’t say that you get anything else except the property back. If you do, the Clerk will reject the judgment. The Clerk can’t give you anything but the property back.
   
• Writ of Possession:
  
  You have to fill out a Writ of Possession on Form EJ-130. Check the box that says you’re asking for “possession of real property”. Also fill out items 1, 3, 4, 5, and 9 on the 1st page and item 9(a) on the 2nd page.
   
• File and serve:
  
  You have to file the Request for Clerk’s Judgment in the Clerk’s office. And, mail a copy to every defendant at the address where they got the summons and complaint. Give the Clerk your suggestion for the Clerk’s judgment and your Writ of Possession when you file. You can ask the Clerk to process your papers while you wait.
   
• What the clerk does:
  
  The Clerk reviews your request. If it’s appropriate, the Clerk issues the Clerk’s Judgment and Writ of Possession. The original copy of the judgment goes in the court file. If you brought an extra copy, the Clerk will endorse it and give it to you. You get the original Writ of Possession.
   
• What the sheriff does:
  
  You have to bring the original Writ of Possession to the Sheriff to evict the defendants. The Sheriff posts a Notice of Eviction at the property. The defendants have 5 days to leave. If they don’t leave, the Sheriff can make them leave.

top of page

6. Ask for money damages 
    
• Timing:
  
  You can’t ask for money damages unless you:
   
• Ask for a Clerk’s Judgment,
• Already got a Clerk’s Judgment, or
• The defendants already moved out.
   
• Fill out the form:
  
  Use Form 982(a)(6). This is the same form you use to ask for Entry of Default and ask for a Clerk’s Judgment. Fill out the form, sign and date.
  
  You don’t have to fill out item 1(e) if you already got a Clerk’s Judgment.
   
• Sworn declaration:
  
  You have to give the court a sworn declaration that proves the money you ask for.
  
  The declaration should say:
   

• The address of the property
   
• What the relationship is between the plaintiff and defendant. This is usually a landlord-tenant relationship
   
• Facts that back up the unlawful detainer. Usually, this is that you served the defendant with a 3 or 30 day notice and they didn’t do what the notice said
   
• Facts that prove the damages. This is how much rent was due when you served the 3-day notice, the fair rental value of the property for 1 day.
   
• Court judgment:
  
  You have to give the court a suggestion for a Court Judgment. There is no official form. You can buy an unofficial form to use. Look up “Legal Forms” in the Yellow Pages.
  If you want, you can write your own Court Judgment. You have to use pleading paper. It has to follow the format in Rule 201(e).
  
  The judgment has to say:
   
• The names of all the plaintiffs
   
• The names of all the defendants the judgment is against
   
• The amount of the judgment
   
• The costs and attorney’s fees This has to be the same amount on the Request for Court Judgment
   
• A place for the Judge to sign and date the judgment
   
• If the defendants had a lease, it has to say the rights the defendant had in the lease are forfeited.
   
• File and serve:
  
  File the Request for Court Judgment in the clerk’s office. Mail a copy to every defendant. Send it to the address where you served them with the summons and complaint.
  
  When you file, give the Clerk your sworn declaration and your suggestion for the Court Judgment. It takes the Court one week to file these papers. Give the court an extra copy of the judgment and a self-addressed stamped envelope.
  
  If a judge makes a Court Judgment, the clerk can endorse a copy and mail it back to you.
   
• Enforce the judgment:
  
  Enforcing a judgment can be complicated. Often, defendants won’t pay voluntarily. Talk to a lawyer or collection agency.

top of page