California Military and Veterans Code

§ 402

MVC § 402 Effective Jan 1, 2025Div. 2 · Part 1 · Ch. 7.5

Statute text

(a)In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before entering judgment shall file in the court a declaration under penalty of perjury setting forth facts showing that the defendant is not in the military service. If unable to file that declaration, the plaintiff shall, in lieu thereof, file a declaration setting forth either that the defendant is in the service or that the plaintiff is not able to determine whether or not the defendant is in the service. If a declaration is not filed showing that the defendant is not in the military service, judgment shall not be entered without first securing an order of court directing that entry, and an order shall not be made if the defendant is in the military service until after the court appoints an attorney to represent the defendant and protect their interest, and the court shall, on application, make that appointment. If an attorney appointed under this section to represent a service member cannot locate the service member, actions by the attorney in the case shall not waive any defense of the service member or otherwise bind the service member. Unless it appears that the defendant is not in the military service the court may require, as a condition before judgment is entered, that the plaintiff file a bond approved by the court conditioned to indemnify the defendant, if in the military service, against any loss or damage that they may suffer by reason of any judgment should the judgment be thereafter set aside in whole or in part. The court may make other orders or enter that judgment as in its opinion is necessary to protect the rights of the defendant under this section.

(b)Any person who shall, for purposes of this section, make or use a declaration declared to be true under penalty of perjury, knowing it to be false, is guilty of a misdemeanor and shall be punishable by imprisonment not to exceed one year or by a fine not to exceed one thousand dollars ($1,000), or both. Any person violating any provision of this section is also liable for actual damages, reasonable attorney’s fees, and costs incurred by the injured party.

(c)In an action covered by this section in which the defendant is in military service, the court shall grant a stay of proceedings for a minimum period of 90 days under this subdivision upon application of counsel, or on the court’s own motion, if the court determines that there may be a defense to the action and a defense cannot be presented without the presence of the defendant, or, after due diligence, counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exists.

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Legislative history

Amended by Stats. 2024, Ch. 129, Sec. 43. (SB 1097) Effective January 1, 2025.