Judge: Joel L. Lofton, Case: 23AHCV00580, Date: 2023-08-15 Tentative Ruling
Case Number: 23AHCV00580 Hearing Date: August 15, 2023 Dept: X
Tentative Ruling
Judge Joel L. Lofton, Department X
HEARING DATE: August 15, 2023 TRIAL DATE: No date set.
CASE: ALLIANCE PORTFOLIO, as Trustee By: RESS Financial Corporation, a California corporation, its Agent, v. THE BISSEL HOUSE, an unknown entity; 201 ORANGE GROVE, INC.; a California corporation; WILLIAM D. HOYMAN, an individual; ALL OTHER PERSON UNKNOWN, CLAIMING ANY RIGHT TITLE, ESTATE, LIEN OR INTEREST IN THE REAL PROPERTY DESCRIBED IN THE COMPLAINT, ADVERSE TO PLAINTIFFS’ OWNERSHIP INTEREST OR ANY CLOUD ON PLAINITFFS; TITLE THERETO; and DOES 1-50, inclusive.
CASE NO.: 23AHCV00580
MOTION TO SET ASIDE DISMISSAL
DEMURRER
MOVING PARTY: Defendant William D. Hoyman
RESPONDING PARTY: Plaintiff Alliance Portfolio
SERVICE: Demurrer filed June 27, 2023
Motion to set aside default filed August 1, 2023
OPPOSITION: Opposition to demurrer untimely filed August 7, 2023
Notice of non-opposition to motion to set aside default filed
August 7, 2023
RELIEF REQUESTED
Defendant moves to set aside the entry of default and default judgment.
BACKGROUND
This case arises out of Plaintiff Alliance Portfolio’s (“Plaintiff”) unlawful detainer claim. Plaintiff filed this complaint on March 16, 2023.
TENTATIVE RULING
Defendant’s motion to set aside default and default judgment is GRANTED.
Defendant’s demurrer is OVERRULED.
LEGAL STANDARD
Motion to Set Aside Default
“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc. section 473, subd. (d).)
Demurrer
A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc. section 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn v. Mirda, supra, 147 Cal.App.4th 740, 747.)
DISCUSSION
Motion to Set Aside Default and Default Judgment
Defendant William D. Hoyman moves to set aside the entry of default and the default judgment. Plaintiff’s request for entry of default was entered on June 16, 2023. Default judgment was entered int on June 26, 2023.
“The service and filing of the notice shall extend the defendant's time to plead until 15 days after service upon him or her of a written notice of entry of an order denying his or her motion, except that for good cause shown the court may extend the defendant's time to plead for an additional period not exceeding 20 days.” (Code Civ. Proc. Section 418.10, subd. (b).) Plaintiff filed a proof of service dated June 13, 2023, containing the notice of ruling denying Defendant’s motion to quash. However, three days later, Plaintiff requested an entry of default. The request for entry of default, the entry of default, and the subsequent default judgment were prematurely entered. “A prematurely entered default judgment is null and void.” (Butenschoen v. Flaker (2017) 16 Cal.App.5th Supp. 10, 14.)
Defendant’s motion to set aside default and default judgment is granted.
Demurrer
Defendant objects to Plaintiff’s complaint on the sole grounds that Plaintiff failed to allege that its title was “duly perfect”. Defendant concedes that if Plaintiff’s complaint contained such an allegation, it would be sufficient. In paragraph 10, Plaintiff alleges the title under the sale was duly perfect.
Plaintiff’s demurrer is overruled.
CONCLUSION
Defendant’s motion to set aside default and default judgment is GRANTED.
Defendant’s demurrer is OVERRULED. Defendant is ordered to file an ANSWER within 5 days notice of this ruling.
Dated: August 15, 2023 ___________________________________
Joel L. Lofton
Judge of the Superior Court