Prove up hearings in Califormnia

Last edited 8 days ago by Ted Broomfield

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Once you have obtained a Default in California, you now want a Judgment, so that you can start to collect.

As a reminder, a Default in California is, when the Plaintiff files a Request for Default, when the Defendant has failed to file a responsive pleading within the time limit, and the Clerk of the Court accepts that default by stamping the Default. A Defaults is merely a ministerial task, whereby the Court acknowledges that the Defendant has failed to file a responsive pleading, and after which, the Court will not allow a Defendant to participate any further in the case, unless a Default has been set aside.

So, a Default merely gives you the opportunity to proceed to obtain a Judgment.

Some types of cases are eligible for a Clerk’s Judgment or even a Court Judgment, without a hearing.

However, other types of cases, especially those with certain types of damages, require what is known as a “Prove Up.”

A “Prove Up” hearing is an evidentiary hearing during which the Court receives evidence and may renders a judgment. In essence it is like a mini and abbreviated trial, generally focusing on the damages aspect of the case. However, in certain procedures, like Unlawful Detainer, you may require proof of service of Notice, as well as other aspects of the tenancy.

What documents do you have to file before a Prove Up Hearing?

It is generally a good idea to file a Trial Brief that conforms to California Rule of Court 5.394 and that includes exhibits of (1) a witness list; (2) an exhibit list; (3) a proposed judgment; and (4) an order for entry of judgment.

According to California Rule of Court 35.394 The Trial Brief needs to contain six (6) parts: (1) statistical facts, if any; (2) brief summary of the case, starting with the facts that you intend to do a prove up and specifics of damages sought; (3) statement of the issues to be resolved (which should be brief in a prove up); (4) experts or appraisals; (5) witness list : refer to attachment; and (6) legal arguments.

If you seek costs, you should file and serve a memorandum of costs. You can use California Judicial Council Form

MC-010⁠

If you seek attorney fees, file and serve a motion for attorney fees.

You should subpoena the witnesses that you want to testify. Make sure to subpoena the person who served the Summons.

Make sure to file a Proof of Service of everything.

Bring four copies of everything you intend to rely on at the prove up. One for yourself. One for witnesses, if the Judge requires them. One for [each of] the defendant[s]. One official copy to admit evidence.

What will happen at a Prove Up Hearing?

The Court will assign your case a line number. Be on time. Report to the clerk.

When the case is called, announce your appearance. Ask for the prove up hearing. State that you have witnesses present and exhibits ready, including copies to admit into evidence.

From there on it, the procedure is like a trial, where you are presenting your case in chief. Except, generally, you will be asked to make a on offer of proof. An offer is proof is your own testimony as to what the witness would testify to and what documents that the witness would authenticate. Make sure to include the witnesses’ names, party, if any, and role with respect to the case. Make sure to identify the documents that would be admitted through them, and that they would both testify as to the elements of authentication, as well as to the substance that you are admitting the document to prove.

Make sure to make an offer of proof as to all the elements that you need to prove.

What will happen at the conclusion of Prove Up Hearing?

Bring a copy of the Trial Statement to hand to the judge. If all goes as expected, the judge will ask you for a proposed judgment. My Trial Statements in Prove Ups have both a proposed judgment, and a proposed entry of judgment.

Don’t forget to service the Notice of Entry of Judgment on Judicial Council Form

CIV-130⁠

on all parties and give your client[s] a courtesy copy of the judgment.

CONCLUSION

Generally, prove up hearings are not high stakes, but, if you overprepare, you will not likely be surprised.

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