Judge: Kerry Bensinger, Case: 23STCV18342, Date: 2024-05-14 Tentative Ruling

Case Number: 23STCV18342    Hearing Date: May 14, 2024    Dept: 31

Tentative Ruling

Judge Kerry Bensinger, Department 31

HEARING DATE:     May 14, 2024                                     TRIAL DATE:  N/A

CASE:                                Alathel Real Estate Investments, LLC v. Ann Turkel

CASE NO.:                 23STCV18342

MOTION TO SET ASIDE DEFAULT

MOVING PARTY:               Defendant Ann Turkel

RESPONDING PARTY:     No opposition

            On August 2, 2023, Plaintiff, Alathel Real Estate Investments, LLC, filed this breach of contract action against Defendant, Ann Turkel, alleging Defendant failed to pay monthly lease payments for Plaintiff’s premises located at 10550 Wilshire Blvd, #1004, Los Angeles, CA 90024.  The Complaint seeks to recover $48,000 in damages, plus interest, attorney’s fees and costs.

On October 18, 2023, Plaintiff served Defendant with the summons and complaint by personal service.

On November 30, 2023, the clerk of the court entered default against Defendant.

On February 5, 2024, Defendant filed this Motion to Set Aside Default on the Complaint.  The hearing for the motion was scheduled for May 14, 2024.

On February 27, 2024, Plaintiff filed the operative First Amended Complaint (FAC).  The FAC seeks to recover $184,500 in damages, plus interest, attorney’s fees, and costs.

On March 24, 2024, Plaintiff served Defendant with the Summons and FAC by personal service.

On April 30, 2024, the clerk of the court entered default against Defendant on the FAC.

Based on the foregoing, Defendant’s Motion to Set Aside Default is MOOT.  “”It is settled by a long line of decisions that where, after the default of a defendant has been entered, a complaint is amended in matter of substance as distinguished from mere matter of form, the amendment opens the default, and unless the amended pleading be served on the defaulting defendant, no judgment can properly be entered on the default. [Citations.] The reason for this rule is plain. A defendant is entitled to an opportunity to be heard upon the allegations of the complaint on which judgment is sought against him. His default on the original complaint is limited in its effect to that complaint, and if by amendment a matter of substance is added, he should be given the opportunity to contest the same before any judgment is given against him on account thereof. The law, therefore, requires that the amended pleading shall be served on all the adverse parties, including defaulting defendants.” (Cole v. Roebling Construction Co. (1909) 156 Cal. 443, 446, 105 P. 255.)”  (Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1743.)

Here, the filing and service of the FAC opened the default entered on November 30, 2023, against Defendant.  However, after Defendant did not file a responsive pleading to the FAC, default was again entered against Defendant on the FAC.  Therefore, because Defendant’s Motion to Set Aside Default targets the entry of default on November 30, 2023, the Motion is MOOT.  Defendant must either obtain a stipulation to set aside default or file another motion to set aside the default entered on April 30, 2024.

The motion is taken off calendar.

Clerk of the court to give notice.

Dated:   May 14, 2024