Default Judgment in a TCPA Lawsuit: How Businesses Set It Aside

A company that missed a TCPA lawsuit can usually ask the court to undo the default, and the rules lean toward deciding cases on their merits. Federal courts in California weigh the company’s reasons for missing the deadline and whether it has a real defense, along with any harm to the plaintiff. California courts have their own motions, one with a 30-day deadline. And a default doesn’t hand the plaintiff its demand: the court usually checks the complaint and the proof of damages before awarding anything.

Default or default judgment: which one do you have?

A default comes first. When a defendant fails to respond in time, the clerk enters its default under Federal Rule of Civil Procedure 55(a). The plaintiff then applies for a default judgment, which is a final judgment, usually for money. Under Rule 55(c), “The court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b).”

The window to respond is short. A federal defendant must serve an answer “within 21 days after being served with the summons and complaint” under Rule 12(a), unless it waived service, or the rule or a federal statute sets another time. In California superior court, the summons directs the defendant to respond “within 30 days after summons is served on the defendant,” under Code of Civil Procedure § 412.20.

If only a default has been entered, you’re in the better position. The Ninth Circuit, quoting the Seventh Circuit, has said the test “is more liberally applied in the Rule 55(c) context,” because there’s no final judgment to protect, in United States v. Signed Personal Check No. 730 of Yubran S. Mesle.

How do federal courts decide whether to reopen a TCPA default?

They apply the test from the Ninth Circuit’s decision in Falk v. Allen, starting from a preference for the merits.

The court in Falk v. Allen listed the factors as “(1) whether the plaintiff will be prejudiced, (2) whether the defendant has a meritorious defense, and (3) whether culpable conduct of the defendant led to the default.” It also wrote that “judgment by default is a drastic step appropriate only in extreme circumstances; a case should, whenever possible, be decided on the merits.”

In TCI Group Life Insurance Plan v. Knoebber, the Ninth Circuit explained that the same factors govern both an entry of default under Rule 55(c) and a default judgment under Rule 60(b). On culpability, the court repeated the usual standard, that “a defendant’s conduct is culpable if he has received actual or constructive notice of the filing of the action and intentionally failed to answer.” It read that word narrowly: a neglectful failure to answer isn’t intentional in that sense when the defendant offers “a credible, good faith explanation negating any intention to take advantage of the opposing party, interfere with judicial decisionmaking, or otherwise manipulate the legal process.”

On the defense and prejudice factors, the TCI Group opinion says a defendant “must present specific facts that would constitute a defense,” but that “the burden on a party seeking to vacate a default judgment is not extraordinarily heavy.” And delay alone isn’t prejudice: “To be prejudicial, the setting aside of a judgment must result in greater harm than simply delaying resolution of the case.”

There’s a catch for businesses. The Ninth Circuit wrote in Mesle, discussing parties represented by counsel, that “When considering a legally sophisticated party’s culpability in a default, an understanding of the consequences of its actions may be assumed, and with it, intentionality.” I’d expect a company with in-house counsel to have a harder time calling its silence a mistake. The same opinion described the test as one that “is disjunctive, such that a finding that any one of these factors is true is sufficient reason for the district court to refuse to set aside the default.” Mesle itself went the other way: the court reversed and vacated the judgment against a claimant who had no lawyer when he defaulted.

I think the meritorious-defense factor is where TCPA defendants have the most to work with. Consent records, a vendor contract, or a Do Not Call scrub log is the kind of specific fact the court asks for.

How much time does Rule 60(b) allow?

It depends on the ground. Rule 60(b) allows relief from a final judgment for “mistake, inadvertence, surprise, or excusable neglect,” and when “the judgment is void,” among other reasons. Under Rule 60(c)(1), the motion must be made “within a reasonable time,” and for grounds (1) through (3) “no more than a year after the entry of the judgment or order or the date of the proceeding.”

The reasonable-time requirement applies to every ground except, in the Ninth Circuit’s reading, a void judgment: the court wrote in SEC v. Internet Solutions for Business Inc. that “a motion to vacate for lack of jurisdiction may be made at any time.” Otherwise, I’d expect a company that waits months after learning of the judgment to hand the plaintiff its best argument. I’d file within weeks, not months.

What does California law allow?

California offers several motions, each with its own showing and most with a deadline in the statute.

Mistake or excusable neglect. Code of Civil Procedure § 473(b) lets the court relieve a party from a judgment taken “through the party’s mistake, inadvertence, surprise, or excusable neglect.” The application “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted,” and must be made “within a reasonable time, in no case exceeding six months.” Unlike the federal test, the statute provides that “No affidavit or declaration of merits shall be required of the moving party.”

A lawyer’s mistake. When the company’s attorney caused the default, § 473(b) makes relief mandatory if an application made within six months of judgment, in proper form, comes with “an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise, or neglect,” unless the court finds the attorney didn’t in fact cause it. The court then orders the attorney to pay the other side’s reasonable fees and costs.

No actual notice. Section 473.5 applies “When service of a summons has not resulted in actual notice to a party in time to defend the action.” The motion is due within a reasonable time, and no later than “(i) two years after entry of a default judgment against the party; or (ii) 180 days after service on the party of a written notice that the default or default judgment has been entered,” whichever is earlier. The company must show under oath that its lack of notice “was not caused by the party’s avoidance of service or inexcusable neglect.”

A void judgment. Section 473(d) lets the court “set aside any void judgment or order.” A 2025 amendment adds a subdivision, operative January 1, 2027, providing that a party “may bring a motion to vacate a default judgment that is void for lack of proper service at any time after entry of the judgment,” according to the text of § 473 posted by the Legislature.

What if the case was in small claims court?

A defendant who missed the hearing “has no right to appeal the judgment,” under § 116.710(d), but it can move to vacate. Under § 116.730, “The motion shall be filed within 30 days after the clerk has mailed notice of entry of the judgment to the parties,” and “Upon a showing of good cause, the court may grant the motion to vacate the judgment.” I’d treat that 30-day clock as running from the clerk’s mailing date, not from whenever someone at the company opens the envelope, because that’s how the statute reads.

When the company wasn’t properly served, § 116.740 allows a motion within “180 days after the defendant discovers or should have discovered that judgment was entered against the defendant,” and lets the court suspend enforcement while it’s pending. Our post on the first steps after a TCPA suit in California covers how small claims TCPA cases are heard.

Can a company challenge the service itself?

Yes. A judgment entered without valid service is void, and Rule 60(b)(4) covers it, but a company that knew about the case and waited carries a heavy burden. The Ninth Circuit held in SEC v. Internet Solutions for Business Inc. that a defendant who “had actual notice of the original proceeding but delayed in bringing the motion until after entry of default judgment, bears the burden of proving that service did not occur,” and that “a signed return of service constitutes prima facie evidence of valid service which can be overcome only by strong and convincing evidence.” In that case, the defendant’s own account didn’t overcome the process server’s sworn statements. I’d prefer to go in with documents, such as the registered agent’s intake log.

Among the culpable defaults TCI Group cites is one where the “defendant insurer had provided its customers and state insurance regulators with an incorrect address, thereby precluding service of process on the company.” In my view, the most preventable TCPA default is the one served on a registered agent address nobody checks. Keep the agent current and its notices routed to someone who reads them.

Does a default mean the plaintiff gets whatever it asked for?

No. The allegations are taken as true, but the amount still has to be proven, and courts can cut TCPA demands.

The Ninth Circuit’s rule, quoted in TeleVideo Systems, Inc. v. Heidenthal, is that “upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.” Rule 55(b)(2) lets the court hold hearings to “determine the amount of damages” or “establish the truth of any allegation by evidence,” and under Rule 54(c), “A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.”

In a 2024 Southern District of California case, Ewing v. Cast Capital Lending Corp., the plaintiff sought $94,000 in statutory damages under the TCPA and California’s call-recording statute, according to the order. The court held that the complaint’s description of two texts as sales messages couldn’t support the Do Not Call claim: “This allegation is simply too conclusory for the Court to credit.” It also wrote, “In this case, the Court declines to award Plaintiff treble damages,” and entered judgment for $17,000. Much of the cut came from the recording claim: the order found only one recorded call adequately pleaded and awarded $5,000 on it, with $12,000 on the TCPA counts.

California is similar. For a claim like a TCPA suit, § 585(b) provides that “The court shall hear the evidence offered by the plaintiff, and shall render judgment in the plaintiff’s favor for that relief, not exceeding the amount stated in the complaint,” and only “as appears by the evidence to be just.” The Court of Appeal wrote in Kim v. Westmoore Partners, Inc. that “it is incumbent upon the plaintiff to prove up his damages, with actual evidence.”

A company that can’t undo the default should still watch the damages stage. If it appeared, Rule 55(b)(2) says it “must be served with written notice of the application at least 7 days before the hearing.” Because the liability allegations are taken as true, I wouldn’t expect a court to let the company reargue consent there. I’d use the hearing to test the count: which calls and texts the complaint actually pleads, whether texts are pleaded as sales messages, and whether anything supports trebling. Our post on how courts count TCPA damages walks through the per-call math.

The routes at a glance

What to do the day you learn about the default

1. Put a litigation hold on the call and text logs, dialer and platform data, and the consent records for the plaintiff’s number, because the motion needs specific facts.
2. Pull the opt-out and internal do-not-call history for the number, with dates.
3. Pull the National Do Not Call Registry scrub records and the version dates for the campaigns that reached it.
4. Gather the vendor and lead-source contracts. Add the call scripts and any recorded or AI-voice message files tied to the calls.
5. Talk to a lawyer before contacting the plaintiff or offering money, and bring the summons, the proof of service, and every notice the company received.

The firm’s TCPA defense lawyers page summarizes how claims involving default judgments and Do Not Call compliance are defended.

Questions businesses ask about TCPA defaults

Can we still settle after a default judgment?

Yes, and I’d make a joint request to set aside the judgment part of any deal, though the court still decides whether to grant it. In my view, once judgment is entered the plaintiff holds the stronger hand, and a company with a credible motion to set aside negotiates from a better position after filing it, or at least with a draft in hand, than it does by asking the plaintiff for mercy.

Does the plaintiff have to tell us before asking for a default judgment?

Not always. Federal Rule 55(b)(2) requires written notice at least seven days before the hearing, but only to a party that “has appeared personally or by a representative.” A company that never appeared may get no notice, so check the docket yourself.

Is it worth fighting a small TCPA default judgment?

Often, yes. California’s summons itself warns that a default judgment “could result in garnishment of wages, taking of money or property, or other relief,” under § 412.20. I also think an unchallenged judgment can invite more claims from the same filer. If a deadline has passed, check whether the judgment is void, which Rule 60(b)(4) and § 473(d) treat separately.

If a default has already been entered against your company

If your company missed a TCPA complaint or a small claims hearing, the governing deadline and the call records usually decide whether the case reopens. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving default judgments and Do Not Call compliance. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The federal rules are Fed. R. Civ. P. 12, 54, 55, and 60. The California statutes are Code of Civil Procedure § 116.710, § 116.730, § 116.740, § 412.20, § 473, § 473.5, and § 585, as amended through Stats. 2025, ch. 563 (AB 747).

The court decisions are Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984); TCI Group Life Insurance Plan v. Knoebber, 244 F.3d 691, 696 to 701 (9th Cir. 2001), overruled on other grounds by Egelhoff v. Egelhoff, 532 U.S. 141 (2001); United States v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 to 1094 (9th Cir. 2010); SEC v. Internet Solutions for Business Inc., 509 F.3d 1161, 1163, 1165 to 1166 (9th Cir. 2007); TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 to 918 (9th Cir. 1987); Kim v. Westmoore Partners, Inc., 201 Cal. App. 4th 267, 272 (2011); and Ewing v. Cast Capital Lending Corp., No. 23-cv-2299-JLS-JLB (S.D. Cal. July 15, 2024), ECF No. 10.

This post is general information about the Telephone Consumer Protection Act and related laws as of August 25, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.