Judge: David A. Hoffer, Case: 30-2020-1172590, Date: 2022-11-28 Tentative Ruling

The Motions of Plaintiff, Lynn Malinas (“Plaintiff”) to Compel Further Responses to Request for Production of Documents (“RFP”) and Form Interrogatories-Construction from Defendant Nghia Nguyen (“Defendant”) are MOOT.

The Order to Show Cause re why default should not be set aside is discharged.

The court notes that on October 5, 2022, default of Defendant was requested and entered.  (ROA 228.)  Entry of defendant’s default instantaneously cuts off its right to appear in the action.  The defendant is “out of court.”  It has no right to participate in the proceedings until either (a) its default is set aside (in which event, it may respond to the complaint), or (b) a default judgment is entered (in which event, it may appeal).  (The Rutter Group: Civ. Proc. Before Trial, Defaults § 5:6, citing Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386; see also, Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333, 343.)

Due to the default, Defendant is barred from participation in this case and the motions seeking Defendant’s participation in discovery are moot.

As to the issue of whether the default should be set aside, the court finds that Defendant’s answer to Plaintiff’s First Amended Complaint (“FAC”) does not render the current default as to the Second Amended Complaint defective.  When an original answer sets forth a sufficient defense to the amended complaint, no amended answer is required.  (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808-811; Gray v. Hall (1928) 203 Cal.306, 311.)  Here, the SAC contains two additional causes of action against Defendant that were not asserted in the FAC.  (See ROA 8, 190.)  Thus, the answer to the FAC does not set forth a sufficient defense to the SAC and an answer to the SAC was required.  Accordingly, the default remains in place.

Plaintiff is to file default judgment paperwork within 30 days.

The motion for summary adjudication seeking judgment against Defendant (ROA 220) is off calendar.

Counsel for Plaintiff is ordered to give notice of this ruling.