Judge: Daniel S. Murphy, Case: 24STCV03574, Date: 2024-09-06 Tentative Ruling

Case Number: 24STCV03574    Hearing Date: September 6, 2024    Dept: 32

BACKGROUND

            On February 13, 2024, Plaintiffs Sussanne Khan and Babrak Arslan Goni filed this action against Defendants Airbnb, Inc.; Kiakat Partners, LP; and Gefin Investments, LLC.

            On May 20, 2024, an unverified answer was purportedly filed by attorney Robert Smith on behalf of Defendant Gefin Investments, LLC (Gefin). Mr. Smith denies ever representing Gefin or filing anything on its behalf. (Smith Decl. ¶ 2.) Plaintiff’s counsel, Hillary Johns, was contacted by a Leslie Richards, who appeared to represent Gefin and requested an extension of time to file a responsive pleading. (Johns Decl. ¶ 1.) Ms. Johns agreed to the extension. (Ibid.) After Mr. Smith informed Ms. Johns that he did not represent Gefin, Ms. Johns discovered that Ms. Richards had been disbarred and was not licensed to practice in California. (Id., ¶¶ 3-4.) Ms. Richards responded that she was only a paralegal, that Mr. Smith was initially set to represent Gefin but could no longer do so, and that Gefin was arranging for new counsel. (Id., ¶ 4, Ex. 5.) To date, Ms. Johns had not been contacted by any licensed attorney representing Gefin. (Id., ¶ 6.)

            On August 5, 2024, Plaintiffs filed the instant motion to strike Gefin’s answer and to enter default against Gefin. Gefin filed its opposition on August 22, 2024. Plaintiffs filed their reply on August 26, 2024.  

DISCUSSION

I. Motion to Strike

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of that pleading. (Code Civ. Proc., § 435, subd. (b).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike (1) any irrelevant, false, or improper matter inserted in any pleading and (2) all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

Plaintiffs move to strike the answer filed on May 20, 2024 on the grounds that it was not properly filed by anyone representing Gefin and that Gefin, as a corporation, cannot represent itself. Gefin does not oppose the striking of the May 20, 2024 answer. The Court finds that the answer is improper and must be stricken. 

II. Entry of Default

            Plaintiffs also request that default be entered against Gefin. Gefin argues that if the answer is stricken, it should be allowed to file a responsive pleading. Gefin manager Shai Abishoor avers that upon receiving the summons and complaint, he contacted an Airbnb referral to arrange for defense counsel. (Abishoor Decl. ¶ 5.) Mr. Abishoor avers that he was connected with Ms. Richards, who appeared to be an attorney representing Gefin and who assured Mr. Abishoor that the case was being handled. (Id., ¶¶ 9-10.) Upon learning of the instant motion and the associated facts, Mr. Abishoor retained Mark Rosenbaum to represent Gefin. (Id., ¶¶ 11-12.)

            Plaintiffs cite no legal authority supporting their request for default. The Court finds that default is not warranted, or would be easily set aside if entered. (See Code Civ. Proc., § 473.) Because the law favors resolution on the merits, doubts are resolved in favor of the party requesting relief, and only “slight evidence” is needed to justify relief. (Caldwell v. Methodist Hospital (1994) 24 Cal.App.4th 1521, 1524.) Here, the facts readily support a finding of mistake or excusable neglect. Gefin is currently represented by licensed counsel and is prepared to file a responsive pleading. The appropriate course is to allow Gefin to respond to the complaint and have the case proceed on the merits.

            Plaintiffs’ reply consists solely of a supplemental declaration by Ms. Johns demonstrating service of the summons and complaint and statement of damages on Gefin. Plaintiffs did not file a reply brief and provide no argument to accompany Ms. Johns’ declaration. It is unclear what significance the evidence has to the issue at hand. Gefin does not deny receiving service of the summons, complaint, or statement of damages. Gefin’s argument against default is that it was caused by mistake or excusable neglect based on the representations made by Ms. Richards. Plaintiffs’ reply evidence has no bearing on these facts, nor have Plaintiffs provided any authority to support their request for default.

CONCLUSION

            Plaintiffs’ motion to strike is GRANTED. The answer of Gefin Investments, LLC filed on May 20, 2024 is stricken in its entirety. Gefin shall file a responsive pleading within 5 days of this order.

            Plaintiffs’ request for entry of default is DENIED.