Based on the court’s prior order, can I skip filing a motion to strike a respondent’s response?

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Based on the court’s prior order, can I skip filing a motion to strike a respondent’s response?

I filed for dissolution and a response was filed. Later, on my (petitioner’s) motion, the court ordered the respondent to provide her disclosures within 30 days and ordered that if the disclosures weren’t provided, my evidentiary sanctions, including striking the response, “are granted for trial.” The disclosures weren’t provided and I want to file a “Request to Enter Default” along with my proposed judgment. Q: Before requesting the default, do I first need to motion the court to strike the response? I want to avoid that because it will add delay for another hearing plus paying the motion fee.

Asked on December 17, 2010 under Family Law, California

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

It all depends on if the first order was what is known as a "self-executing "order.  If it is considered self executing - meaning that no other motion is needed - then you can just file your request to enter a default as against the respondent.  If, however, it is not a self executing order then you have to move to strike the response and enterdefault.  It is difficult to tell without reading the order which one you have.  So I would suggest that you speak with someone on a consultation basis to find out your next step.  Possibly try a local clinic or bar association and see if they have a pro bono section. Good luck.  


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