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Getting a Judgment When a Petitioner Fails to Move the Case Forward

Nonresponsive Petitioner Lawsuit

Legal cases generally involve a back and forth process between the petitioner—the person who files a legal petition—and the respondent, the person who is filed against. While most often it’s the respondent who isn’t amicable to the process, occasionally a petitioner begins the process, only to fail to follow through to the end. This is especially common in divorce cases, when a petitioner recognizes that their case isn’t going well.

In circumstances like this, what respondents often don’t realize is that they do have power in this situation. While a recalcitrant petitioner can slow the process down, they can’t halt it altogether, which allows the respondent the opportunity to advance the case towards its conclusion.

Filing a Motion for Default can bring the matter to a close, if the petitioner hasn’t submitted their financial disclosures.

If the petitioner has not served their financial disclosures within the proscribed amount of time, and you (the respondent) have served your financial disclosures, you can file a Motion for Default. When you file a Motion for Default, a copy is sent to the other party, who may make an appearance in court to plead their case. There are excuses for failing to serve disclosures in a timely manner that a court will accept, but even if the court does accept an excuse, the petitioner will be given a hard deadline to serve their disclosures.  If they fail to follow that order, the petitioner’s default may be taken by the court.

If the petitioner’s default is taken, you can get a judgment without needing any further involvement from the petitioner.

The process of advancing a case is a bit different if both parties have served their financial disclosures.

Under this circumstance, you cannot submit a Motion for Default. Instead, you’ll have to submit a request for trial. This is typically a simple form, which most county courts have on their websites. The form will include an area in which to indicate any dates that you are unavailable to attend the trial—don’t neglect to fill this out.

You’ll need to have submitted Proof of Service Disclosures to the court beforehand—for a trial to happen, both parties will need to have submitted this form, or at least by you in order to force a default.

The court will then set a date for the trial. If your trial is in our local Sacramento court, they will set a mandatory settlement conference a week before the trial, in order to give both sides the opportunity to settle out of court, and minimize the county’s caseload.

If the matter goes to trial and the petitioner doesn’t show up, you will be able to take a default. If the petitioner does show up then at least you’ll be able to resolve the matter (e.g. your divorce) and move on with your life.

Very old cases can be dismissed if they haven’t been brought to trial within 5 years.

In California, if a lawsuit isn’t brought to trial within five years of the initial petition being filed, the case must be dismissed if either party—the petitioner or the respondent—submit a motion requesting dismissal.

To be clear, to fulfill the requirement of a case being brought to trial, a jury must be impaneled, a witness’s testimony must be heard, or the case has been brought to a final disposition based upon the law or some element of the case. If this threshold isn’t met within five years, the case can be dismissed, unless the deadline is extended by mutual written agreement or if the case goes to judicial arbitration or mediation during the final six months of this five year period. There are also other exceptions, such as when a case is “tolled,” meaning it’s been put on pause.

Otherwise, if the case isn’t brought to trial by the five year deadline, dismissal of the case is mandatory. Requesting a dismissal is a bit complicated, as it requires filing a variety of documentation. The Sacramento Public Law Library has a useful guide on how to request dismissal of a case for failure to bring to trial.

If you’re struggling with a non-responsive petitioner, and would like assistance with your case, we’re happy to help. You can contact Toeppen & Grevious by calling 916-400-4516, or by sending us a message using our contact form.