Judge: Douglas W. Stern, Case: 19STCV40930, Date: 2023-02-14 Tentative Ruling

Case Number: 19STCV40930    Hearing Date: February 14, 2023    Dept: 68

BACKGROUND

            This case was filed on November 13, 2019. On June 13, 2022, this Court sustained Plaintiff’s demurrer to Defendant’s answer with Leave to Amend. Defendant was given twenty days leave to amend. Defendant failed to file an amended answer by July 5, 2022. Therefore, Defendant’s default was entered on November 23, 2022.

            Apparently not understanding the consequences of being in default, on January 19, 2023, Defendant Ashley Simpson filed a motion with the Court to invalidate the HOA lien. For the reasons discussed below, the Court will not consider this motion.

LEGAL STANDARD AND ANALYSIS

             Entry of a defendant’s default instantaneously cuts off his right to appear in an action. Defendant is considered “out of court” and has no right to participate in the proceedings until either (a) his default is set aside or (b) a default judgment is entered (which is appealable). (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386.)

For example, a defaulting defendant has no right to take depositions of plaintiff’s witnesses, or to appear in court at the “prove up” hearing in an attempt to block entry of a default judgment. (Id. at 385-386.)

Entry of default deprives the court of jurisdiction to consider any motion other than a motion for relief from default. (W.A. Rose Co. v. Mun.Ct. (FitzSimmons) (2005) 176 Cal.App.2d 67.)

“The entry of a defendant’s default cuts off the defendant’s right to file pleadings and motions (other than a motion to set aside default under § 473), and it also cuts off the defendant’s right to notices and the service of pleadings or papers. (Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 823–824, 59 Cal.Rptr.3d 1; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1301, 24 Cal.Rptr.3d 780.) Moreover, the trial court, in connection with rendering a default judgment, will treat the well-pled allegations of the complaint as admitted by the defaulting defendant, and therefore the plaintiff is not required to provide evidence as to such issues. (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 281, 133 Cal.Rptr.3d 774.) Finally, the defaulting defendant is not entitled to advance any contentions on the merits, or to participate at all in the default proceedings. (Steven M. Garber & Associates v. Eskandarian, supra, at pp. 823–824, 59 Cal.Rptr.3d 1.)”  Bailey v. Citibank, N.A. (2021) 66 Cal.App.5th 335, 347 [280 Cal.Rptr.3d 546, 555, 66 Cal.App.5th 335, 347]

In this case, Defendant’s default was entered on November 23, 2022. The default has not been set aside. Because default was entered, Defendant cannot now appear in this action. Therefore, Defendant’s Motion to Invalidate the HOA Lien is invalid.

The Court shall not consider Defendant’s motion to invalidate the HOA lien, as it is not a proper motion at this stage in the proceedings.