Judge: Latrice A. G. Byrdsong, Case: 23NWLC13062, Date: 2024-04-17 Tentative Ruling

Case Number: 23NWLC13062    Hearing Date: April 17, 2024    Dept: 25

Hearing Date:                         Wednesday, April 17, 2024

Case Name:                             ARDEN SILVERMAN v. INTERNATIONAL COSMETICS & REGULATORY SPECIALISTS, LLC

Case No.:                                23NWLC13062

Motion:                                   Motion to Strike Answer of Defendant

Moving Party:                         Plaintiff Arden Silverman

Responding Party:                   Defendant International Cosmetics & Regulatory Specialists, LLC

Notice:                                    OK

Tentative Ruling:                    Plaintiff Arden Silverman’s Motion to Strike is DENIED.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                     OK

[   ] Correct Address (CCP §§ 1013, 1013a)                                      OK

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                       OK 

OPPOSITION:          Filed as of February 27, 2023             [   ] Late          [   ] None 

REPLY:                     Filed as of February 28, 2023             [   ] Late          [   ] None 

BACKGROUND

On May 03, 2023, Plaintiff Arden Silverman (“Plaintiff”) filed a complaint for common counts against Defendant International Cosmetics & Regulatory Specialist LLC (“Defendant”).

On July 03, 2023, Plaintiff moved for default to be entered against the Defendant, and the Clerk entered default against Defendant the same day.

On July 26, 2023, the Court entered default judgment against the Defendant in the amount of $15,444.37.

On September 14, 2023, Defendant filed a Motion to Vacate Default Judgment. The Court continued the hearing pursuant to Defendant’s request, after noting several deficiencies with the motion.

On November 02, 2023, Defendant filed a Motion to Vacate Default Judgment. The Court granted Defendant’s motion, vacated the Default and Default Judgment, and deemed Defendant’s proposed Answer of December 12, 2023, filed.

On December 18, 2023, the Court reassigned the matter to Commissioner Latrice A.G. Byrdsong in Department 25 at the Spring Street Courthouse.

On January 23, 2024, Plaintiff filed the instant Motion to Strike Answer of Defendant. Defendant responds in opposition. Plaintiff files in reply.

MOVING PARTY POSITION

            Plaintiff prays for the Court to issue an order, striking Defendant’s Answer filed on December 12, 2023, on the ground that the Answer filed on behalf of the Defendant is not signed by Defendant’s counsel of record and is subject to be stricken under CCP § 1250.330. Plaintiff further argues that since Defendant did not seek a set aside of the default entered on July 03, 2023, Defendant’s Answer is improperly filed.

OPPOSITION

            In opposition, Defendant argues that Plaintiff’s motion should be denied in its entirety because it is untimely under CCP § 435 as Plaintiff did not file a motion to strike within ten days from the date Defendant filed its Answer. Defendant further argues that the Court set aside both the default and default judgement in its December 12, 2023, Order.

REPLY

            In reply, Plaintiff reasserts that Defendant has not set aside the July 03, 2023, default. Plaintiff further argues that the motion is timely because CRC Rule 3.1322(b) does not impose a time limit to file a motion to strike an Answer within ten days as asserted by the Defendant.

ANALYSIS

I.          Legal Standard

            “Where a party is represented by an attorney, his pleading need not be verified but shall be signed by the attorney for the party. The signature of the attorney constitutes a certificate by him that he has read the pleading and that to the best of his knowledge, information, and belief there is ground to support it. If the pleading is not signed or is signed with intent to defeat the purposes of this section, it may be stricken.” (Code of Civ. Proc. § 1250.330.)

II.        Discussion

            Plaintiff moves for the Court to issue an order striking Defendant’s Answer to the Complaint. As a preliminary matter, the Court’s order will address Plaintiff’s motion under CCP 1250.330 as provided in Plaintiff’s notice of Motion.

            Plaintiff asserts that ecause the answer filed on behalf of the Defendant is not signed by the Defendant’s attorney of record, the answer is subject to be stricken per CCP § 1250.330. Plaintiff further argues that because the Defendant did not take any action to vacate the entry of default of July 03, 2023, Defendant’s Answer is improperly filed.

             The Court finds Plaintiff’s motion improper. Per the Court’s December 12, 2023, Minute Order, the Court clearly allowed the Defendant’s Answer to be filed in granting Defendant’s Motion to Vacate Default Judgment. Indeed, the Pulte court held that setting aside default judgment without setting aside the default would be an “idle act” and thus not permitted…. (Pulte Homes Corp. v. Williams Mechanical, Inc. (2016) 2 CA5th 267, 273.) Upon reviewing the Court’s prior order, the Court’s order vacated both the default entered on July 03 and the default judgment on July 26, 2023. Although the Court’s order did not specify that default was set aside, the Court’s December 12th order clearly stated that, “The defendant's proposed answer is deemed filed this date.” (12/12/23 Minute Order.)

Therefore, Plaintiff’s Motion to Strike is DENIED. The Court on its own motion corrects its Order Entered on December 12, 2023, Nunc Pro Tunc, to specify that the default entered on July 03, 2023, is set aside, in addition to default judgment being vacated.

III.       Conclusion

            Plaintiff Arden Silverman’s Motion to Strike is DENIED.

Moving Party is ordered to give notice.