Is a Defaulted Defendent's Declaration admissable/arguable?

[750Chestnut]

CALIFORNIA !!

More Background....and thank you in advance. Have received great help here, and as I am pro per.....I am back. Quincy, Plaintiff settlement was messed up!! Basically left lots of holes open for her to continue litigation, even after I offered my portion of the settlement properly.

It's a case over property, given away by Plaintiff in Jan. 2011, then given to me by third party (third party is the second defendant). Plaintiff has come back, 2 years and 3 months later, saying the property was never given away, that the third party improperly passed the property on to me, and that the third party was merely "watching it for her" while she moved. It has grown from limited civil case to now unlimited with huge (unfounded) damages. I would have thought if the plaintiff really wanted to regain legal possession of this property, that my offer to surrender it, for fully dropped charges, would be what she wanted. But no, she just wants to litigate and sue.

The other Defendent has default entered, but no default judgement.She failed to answer the First Amended Complaint, and is screwing up my case!

So, the real question.....In my response to Plaintiff's Writ of Possession application, part of the plaintiff's objection to my answer (my answer included a declaration from Defendent #2 that is very damaging to Plaintiff) is

" This Court Should Strike Defaulted Defendant (name omitted) Declaration on the Grounds That It Contradicts Material Facts Deemed Admitted By Her Default.
"Every material allegation of the complaint or cross-complaint, not controverted by the
answer, shall, for the purposes of the action, be taken as true." Cal. Code Civ. Proc. � 431.20(a).".

Plaintiff's counsel is inferring that since Def. #2 did not respond to First Amended Complaint, than Plaintiff's accusations in FAC must be true in the opinion of Def. #2. Also, please note that there is now a Second Ammended complaint, that Def. #2 was not served on, but should be given an opportunity to answer. Filed after Writ of Possession pleadings.

If CCP is not as stringent as The Civil Code, is there a Civil Code that I can argue that would allow Defendent #2's testimony? Or is she no longer a Defendant due to entered in default, and therefore she is a witness and her testimony is admissible?

OR???

I know, kinda complicated, so....thanks if you have any input. I 've done well building on everyone's input whether large or small amount of info.

 

[quincy]

I am sorry to hear that the settlement was messed up and that litigation continues, 750Chestnut.

For the benefit of other members who may be able to provide you with some answers, some advice and some direction, I am including the links to your two earlier threads, in case they want a little bit of background information.

The threads, from first to most recent:

https://forum.freeadvice.com/civil-litigation-46/can-i-respond-disagreement-proposed-order-reclassification-leave-604479.html

https://forum.freeadvice.com/civil-litigation-46/ccp-1542-laymans-terms-please-604940.html

 

[Mark Maroon]

If CCP is not as stringent as The Civil Code, is there a Civil Code that I can argue that would allow Defendent #2's testimony? Or is she no longer a Defendant due to entered in default, and therefore she is a witness and her testimony is admissible?
OR???
I know, kinda complicated, so....thanks if you have any input. I 've done well building on everyone's input whether large or small amount of info.

OK, here are some thoughts. Take them for whatever they are worth (which might not be much).

If I understand correctly, the plaintiff gave or left some property with defendant #1, defendant #1 gave or left that property with defendant #2, you are defendant #2, and the plaintiff alleges causes of action against both defendant #1 and defendant #2 related to the property that they claim they left with defendant #1, but did not give to defendant #1.

I don’t know what you mean when you say that defendant #1 “default entered”. Has defendant #1 ever entered any appearance of any kind in the case by making, or authorizing any attorney to make, any filing on their behalf in the case? If not, then they have not “default entered”, they have not entered at all, they are in default for failing to enter, but no default judgment has been taken against them (yet).

I don’t know about CA, but I think in most states, if a plaintiff files an amended complaint, then that act renders moot any responses that were filed to any prior complaint, or any failures to file any responses to any prior complaint.

Are you in contact with defendant #1? Are they planning on filing a timely response to the most recently filed second amended complaint? Are they planning on appearing as a witness for you?

If defendant #1 won’t appear as a witness for you, then I think whatever they told you (or wrote to you as a “declaration”) might be inadmissible as hearsay. I think the only exception to hearsay would be if you filed a cross-claim against defendant #1, and then admitted into evidence what they told you (or wrote to you as a “declaration”) as an exception to hearsay based on the admissions of a party opponent. I am not big on hearsay exemptions, there might be other hearsay exemptions that you could use to get the evidence (the statements of defendant #1 when they are not present) into evidence.

Should defendant #1 not file any response to the second amended complaint, and should you decide to file an answer to the second amended complaint, then I think you can avoid the plaintiff’s attempt at that stage to strike defendant #1’s “declaration” by simply not including it, or any references to it, in your answer to the second amended complaint. I think your answer can be simple denials of the allegations – you don’t have to go into gory detail as to why you deny the allegations. But you might want to consider some kind of cross complaint, directed against defendant #1, claiming that any liability on your part is in fact the responsibility and liability of defendant #1 (unless perhaps if you can get defendant #1 to file an answer and/or you can guarantee that they will appear as a witness for you).

 

[750Chestnut]

OK, here are some thoughts. Take them for whatever they are worth (which might not be much).

If I understand correctly, the plaintiff gave or left some property with defendant #1, defendant #1 gave or left that property with defendant #2, you are defendant #2, and the plaintiff alleges causes of action against both defendant #1 and defendant #2 related to the property that they claim they left with defendant #1, but did not give to defendant #1.

I don�t know what you mean when you say that defendant #1 �default entered�. Has defendant #1 ever entered any appearance of any kind in the case by making, or authorizing any attorney to make, any filing on their behalf in the case? If not, then they have not �default entered�, they have not entered at all, they are in default for failing to enter, but no default judgment has been taken against them (yet).

I don�t know about CA, but I think in most states, if a plaintiff files an amended complaint, then that act renders moot any responses that were filed to any prior complaint, or any failures to file any responses to any prior complaint.

Are you in contact with defendant #1? Are they planning on filing a timely response to the most recently filed second amended complaint? Are they planning on appearing as a witness for you?

If defendant #1 won�t appear as a witness for you, then I think whatever they told you (or wrote to you as a �declaration�) might be inadmissible as hearsay. I think the only exception to hearsay would be if you filed a cross-claim against defendant #1, and then admitted into evidence what they told you (or wrote to you as a �declaration�) as an exception to hearsay based on the admissions of a party opponent. I am not big on hearsay exemptions, there might be other hearsay exemptions that you could use to get the evidence (the statements of defendant #1 when they are not present) into evidence.

Should defendant #1 not file any response to the second amended complaint, and should you decide to file an answer to the second amended complaint, then I think you can avoid the plaintiff�s attempt at that stage to strike defendant #1�s �declaration� by simply not including it, or any references to it, in your answer to the second amended complaint. I think your answer can be simple denials of the allegations � you don�t have to go into gory detail as to why you deny the allegations. But you might want to consider some kind of cross complaint, directed against defendant #1, claiming that any liability on your part is in fact the responsibility and liability of defendant #1 (unless perhaps if you can get defendant #1 to file an answer and/or you can guarantee that they will appear as a witness for you).

Thanks Mark!
Actually, I've always just called my self Defendant #1, but I guess I really am #2. None the less, your scenario is correct. Defendent #1 (the person who allegedly improperly bailed the property, and gave it to me, under the information that Plaintiff no longer wanted it) is not with it. She kind of mentally "ran away", hasn't or can't retain counsel, then moved to Nebraska. Very immature and while she signed the declaration and we've been in contact on the phone and she's "available", she's kind of detached in a "ignore it and it will go away" sense. But it won't go away. I am fighting my own defense and can't help her--she needs to engage!

I did file a indemnity counter claim at the beckoning of my then attorney. I didn't want to, I don't think the other defend. did anything wrong. My attorney kind of pressured me, I caved. Now, I guess, I am screwed (sorry for my crass language), from what you said. The Plaintiff filed--sorry I don't know all the terms--an "entry of default" (?) against other defendant, as she did not file an answer to 1st Ameded Complaint. So from what I can tell, that means the other defendant can not answer the first amended complaint, and plaintiff's attorney says this other defendant also cannot file a declaration and "re-enter" the case because of the "Entry of Default".

I have been served with the Proposed Second amended complaint, the other defendant has not, and the other defendant is still named on it. BUT, it's not been filed, and the order granting leave to file the second amended complaint, was just sent to the judge for signature.

There is a Writ of Possession hearing on Monday that I don't want to lose, but sounds like ...like I said...I am screwed. The plaintiff's objection to my Opposition to Writ of Possession brief, demands that the other defendant's declaration be thrown out. It contains all the key evidence, that indeed the plaintiff did give away the item (an animal, that I love), and it was not a temporary situation (it all started three years ago! Plaintiff filed the action two years and three months after giving it away).

Thanks if you have any more ideas.

 

[Mark Maroon]

Thanks if you have any more ideas.

It’s hard to give useful advice because it’s hard to know who was properly served, what they were served with, and who has filed what.

Are you saying that the plaintiff has received a (default) judgment against the other defendant? Has the plaintiff received a judgment against you? I don’t see how there can be a writ of possession hearing if there isn’t a judgment against either you or the other defendant. I don’t see how there can be a writ of possession issued against you if there isn’t a judgment against you.

I also don’t understand why the plaintiff would file for a writ of possession and also file a motion for leave to file a second amended complaint. I am not 100% sure, but I think that filing an amended complaint renders as moot any prior complaint, and any response to any prior complaint, and any judgment based on any prior complaint, and any writ of possession based on any prior complaint.

Hopefully the plaintiff will actually file their second amended complaint (and hopefully I am right in thinking that it will render moot any judgment and any writ of possession based on any prior complaint). Once the second amended complaint is filed I think you need to pay particular attention to whether or not you and the other defendant were properly served with the second amended complaint. I am not 100% sure, but I think that any amended complaint must be served as if it was an original complaint (because the filing of an amended complaint makes any prior complaint moot – along with the service of any prior complaint).

A counterclaim is a claim by a defendant against a plaintiff. A crossclaim is a claim by a defendant against a defendant. Since it sounds like you cannot trust that the other defendant will testify at the trial on your behalf, I think you need to file a crossclaim against the other defendant. I think you need to do this so that at the trial you can admit into evidence any writings that the other defendant sent to you. I think the writings will be hearsay because the person who wrote them (the other defendant) will not be present to authenticate them. But if you have filed a crossclaim against the other defendant, then I think their writings can be admitted under an exception to hearsay (admissions by a party opponent).

 

[750Chestnut]

"Default Entered"

It’s hard to give useful advice because it’s hard to know who was properly served, what they were served with, and who has filed what.

Are you saying that the plaintiff has received a (default) judgment against the other defendant? Has the plaintiff received a judgment against you? I don’t see how there can be a writ of possession hearing if there isn’t a judgment against either you or the other defendant. I don’t see how there can be a writ of possession issued against you if there isn’t a judgment against you.

I also don’t understand why the plaintiff would file for a writ of possession and also file a motion for leave to file a second amended complaint. I am not 100% sure, but I think that filing an amended complaint renders as moot any prior complaint, and any response to any prior complaint, and any judgment based on any prior complaint, and any writ of possession based on any prior complaint.

Hopefully the plaintiff will actually file their second amended complaint (and hopefully I am right in thinking that it will render moot any judgment and any writ of possession based on any prior complaint). Once the second amended complaint is filed I think you need to pay particular attention to whether or not you and the other defendant were properly served with the second amended complaint. I am not 100% sure, but I think that any amended complaint must be served as if it was an original complaint (because the filing of an amended complaint makes any prior complaint moot – along with the service of any prior complaint).

A counterclaim is a claim by a defendant against a plaintiff. A crossclaim is a claim by a defendant against a defendant. Since it sounds like you cannot trust that the other defendant will testify at the trial on your behalf, I think you need to file a crossclaim against the other defendant. I think you need to do this so that at the trial you can admit into evidence any writings that the other defendant sent to you. I think the writings will be hearsay because the person who wrote them (the other defendant) will not be present to authenticate them. But if you have filed a crossclaim against the other defendant, then I think their writings can be admitted under an exception to hearsay (admissions by a party opponent).

Plaintiff's counsel filled out paper work that requested an "entry of default" with court clerk. Court clerk checked the box that says "default entered as requested". Following the court documents on the public site, I do not see an actual default judgement. But did read elsewhere on line that an "entry" blocks the defendant from filing an answer.

I believe you are correct the second amended complaint would render all before it moot. I have been served, but it is not filed. There hasn't been any judgements yet in this case. The plaintiff has been screwing around in the legal system for over a year--so much for her dedication in trying to reclaim "her" alleged property. Now that I am pro per, she is coming at me, and finally actually scheduled the writ hearing--after continuing it or cancelling it on three other occasions.

Thanks for your thoughts. Everyone here is so smart and helpful.

 

[Mark Maroon]

Plaintiff's counsel filled out paper work that requested an "entry of default" with court clerk. Court clerk checked the box that says "default entered as requested". Following the court documents on the public site, I do not see an actual default judgement. But did read elsewhere on line that an "entry" blocks the defendant from filing an answer.

I believe you are correct the second amended complaint would render all before it moot. I have been served, but it is not filed. There hasn't been any judgements yet in this case. The plaintiff has been screwing around in the legal system for over a year--so much for her dedication in trying to reclaim "her" alleged property. Now that I am pro per, she is coming at me, and finally actually scheduled the writ hearing--after continuing it or cancelling it on three other occasions.

Thanks for your thoughts. Everyone here is so smart and helpful.

I believe that you are correct when you say that once a judgment has been entered against a defendant, that defendant cannot remove, reverse, strike, or open that judgment simply by filing an answer. However, it would be nice if someone else could confirm that once the plaintiff files an amended complaint any judgment based on a prior complaint is moot (no longer valid) and so is any writ of possession related to that judgment. There are also other ways that a defendant (or a plaintiff for that matter) can have a judgment reversed, stricken, or opened, but they aren't relevant here.

You need to make sure that you were properly served. Being served is a legal procedure with very specific rules for service that must be followed. Just because you received a copy of the complaint doesn't mean that you were "served" with it. The plaintiff cannot receive a valid judgment against you unless there was valid service (same goes for the other defendant). I don't know if in CA amended complaints need to be served as if they are original complaints or not.

 

[750Chestnut]

All that worrying and here is the ruling......

All that worrying about the other defendant's declaration getting thrown out (and hasn't been yet, and my paralegal and her attorney wrote a blazing response to the Plaintiff's response), and my losing key evidence, and the tentative ruling is a continuation! errrgh....but paralegal says this is good for my side, that the judge is really questioning the plaintiff, and not favoring her.
Yet the quote "unlike the plaintiff" means "similar to plaintiff". So, isn't the judge saying that 'both defendant and plaintiff are saying the same thing'.?

FROM MY TENTATIVE RULING--
Plaintiff has not complied with the requirement for an undertaking or shown that Defendant has no interest in the property. CCP § 512.060. Plaintiff’s statement under penalty of perjury in her application for writ or possession at item No. 4 states, “Property has enormous value to Plaintiff. There’s no amount of undertaking that Defendant "X" could bond that would adequately compensate Plaintiff for the loss of companionship in the interim.” Plaintiff further argues in her moving points and authorities that Defendant has stated she has no interest in "Property"; however, Defendant has stated in her opposition that "Property"’s value to her is in his companionship, not monetary value. This is not unlike the statement of Plaintiff.

Ruling goes on to say--
The Court will allow Plaintiff to amend her application for writ should she choose to do so in order solely to augment item No. 4 wherein a monetary value is stated which the Court can then utilize in order to determine the amount of the undertaking which would be required should the Plaintiff’s motion be granted. If no amended application is filed and served then at the next court hearing, the Plaintiff’s motion will be DENIED.