changes. As drafted, it was not clear whether the judgment was for $5 mil- lion against all defendants, or against each defendant for $5 million, for a total of $30 million. The defendants appealed. The Court of Appeal reversed, writ-
ing a primer for lawyers and judges on the default process. There is lengthy analysis of the process, and each party’s responsibilities along the way. Here is how the opinion begins: We reluctantly return in this case
to the question of default judgments with a cautionary tale – well, three actually. The first is a tale for plain- tiff ’s attorneys, who may assume a defendant’s default is an unalloyed gift: an opportunity to obtain a big judgment with no significant effort. It is not. Instead, when a defendant fails to timely respond to the com- plaint, the first thing plaintiff ’s coun- sel should do (after offering an extension of time to respond) is review the complaint with care, to ascertain whether it supports the spe- cific judgment the client seeks. If not, a motion to amend is in order. In this case, counsel for plaintiff Gil Kim failed to do that. Instead, he simply asked the court to enter defendants’ defaults on the com- plaint as initially alleged. Unfortunately for Kim, the factual allegations of that complaint do not support any judgment in his favor. The second cautionary tale is for
trial courts. And it’s not the first time we have told this tale. As we previous- ly explained . . . ‘[i]t is imperative in a default case that the trial court take the time to analyze the complaint at issue and ensure that the judgment sought is not in excess of or inconsis- tent with it. It is not in plaintiffs’ interest to be conservative in their demands, and without any opposing party to point out the excesses, it is the duty of the court to act as gate- keeper, ensuring that only the appro- priate claims get through. That role
requires the court to analyze the com- plaint for itself – with guidance from counsel if necessary – ascertaining
LEGAL MALPRACTICE Any underlying case/transaction, fee disputes, ethics, 43 years
EXPERT WITNESS
Phillip Feldman, BS, MBA, JD, AV (PEER Rated) Bd. Cert. Legal Malpractice ABPLA & ABA Also State Bar Defense (818) 986-9890
www.LegalMalpracticeExperts.com E-mails:
legmalpexpert@aol.com StateBarDefense@aol.com
what relief is sought as against each defaulting party, and to what extent the relief sought in one cause of
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JANUARY 2012 The Advocate Magazine — 83
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