Judge: Daniel M. Crowley, Case: 24STCV25372, Date: 2025-04-11 Tentative Ruling
Case Number: 24STCV25372 Hearing Date: April 11, 2025 Dept: 71
County of Los Angeles
DEPARTMENT
71
TENTATIVE RULING
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JUNIUS
J. JOYNER, III, ESQ., vs. UNITED
STATES VETERANS INITIATIVE, et al. |
Case No.:
24STCV25372 Hearing Date: April 11, 2025 |
Plaintiff
Junius J. Joyner, III, Esq.’s, unopposed motion, in pro per, to
direct the Clerk to enter his request for entry to default against Nathans
Towing, LLC, is denied.
Plaintiff Junius J. Joyner, III, Esq. (“Joyner”)
(“Plaintiff”) moves unopposed in pro per to direct the Clerk to
enter request for entry of default.
(Motion, pg. 1; C.C.P. §§585, 585.5.)
Background
Plaintiff filed his initial Complaint against
Defendants United States Veterans Initiative dba U.S. Vets Inglewood (“U.S.
Vets”), Cantwell-Anderson Inc. dba Cloudbreak Communities (“Cloudbreak”), and
Nathans Towing, LLC (“Nathans Towing”) (collectively, “Defendants”) on October
1, 2024, for two causes of action: (1) violation of Unfair Practices Act; and
(2) negligence.
On November 22, 2024, Plaintiff filed a request
for entry to default against Nathans Towing, which was rejected by the Clerk
and not entered on November 27, 2024. (See
11/27/24 Notice of Rejection Default/Clerk’s Judgment.)[1]
Plaintiff filed the instant motion on December
16, 2024. As of the date of this hearing
no opposition has been filed.
Plaintiff filed the operative First Amended
Complaint (“FAC”) on March 6, 2025, against Defendants alleging five causes of
action: (1) due process violation; (2) defamation; (3) violation of Unfair
Practices Act; (4) conversion; and (5) negligence per se.
Discussion
An amended complaint making substantive changes
in the cause of action asserted against a defaulting defendant supersedes the
original complaint. In effect, it “opens
the default” because plaintiff is required to serve the amended complaint on
the defendant; and the defendant is then entitled to answer, demur or otherwise
respond to the amended complaint. The purpose is to allow the defendant to reassess
whether to contest the action in light of the changes made in the complaint. (Ostling v. Loring (1994) 27 Cal.App.4th
1731, 1734; Engebretson & Co., Inc. v. Harrison (1981) 125 Cal.App.3d
436, 442-443; Paterra v. Hansen (2021) 64 Cal.App.5th 507, 529-530.)
After Plaintiff filed the instant motion,
Plaintiff filed the operative FAC, thereby “opening the default.” Therefore, Plaintiff’s motion is denied as
moot. Plaintiff must begin anew the
procedures for entry of default against Nathans Towing. As of the date of this hearing, no proof of
service of the FAC on Nathans Towing has been filed with this Court. Furthermore, Plaintiff has failed to submit a
new Request for Entry of Default to this Court as it pertains to Nathans
Towing.
Accordingly, Plaintiff’s motion is denied.
Conclusion
Plaintiff’s unopposed motion is denied.
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Hon.
Daniel M. Crowley |
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Judge
of the Superior Court |
[1]
As an aside, the Court notes that the Proof of Service on Nathans filed by
Plaintiff on November 4, 2024 indicates that the service of the Complaint was made
by Los Angeles County Sheriff Deputy Jennifer Digioia on “Nathans’s Towing LLC”
on October 17, 2024 at 11:25 a.m., and that the “Notice to Person Served” was
completed as follows: “United States Veterans Initiative-US Vets Inglewood,” whereas
the Proof of Service on Nathans filed by Plaintiff on December 16, 2025
indicates that the service was made by Los Angeles County Sheriff Deputy
Jennifer Digioia on “Nathans’s Towing LLC” on October 17, 2024 at 11:25 a.m.,
and that the “Notice to Person Served” was completed as follows: “Nathan’s
Towing, LLC.” Insomuch as the issue now
is the service of the First Amended Complaint, this discrepancy is potentially
moot.