Judge: Lisa R. Jaskol, Case: 21STCV26198, Date: 2024-02-22 Tentative Ruling
Case Number: 21STCV26198 Hearing Date: February 22, 2024 Dept: 28
BACKGROUND
On July 15, 2021, Plaintiff Craig Scott Hawley (“Plaintiff”) filed this action against Defendants Arman Belgaryan and Does 1-25 for motor vehicle tort and general negligence.
On January 10, 2023, Plaintiff filed a proof of service showing personal service on Defendant Arman Belgaryan of the summons, complaint, statement of damages, and other documents on January 8, 2023.
On March 6, 2023, the clerk entered Defendant Arman Belgaryan’s default.
On March 7, 2023, the Court set an order to show cause re: dismissal for failure to request entry of default judgment on May 15, 2023.
On May 15, 2023, at Plaintiff’s request, the Court continued the order to show cause re: dismissal to August 17, 2023.
On August 17, 2023, at Plaintiff’s request, the Court continued the order to show cause re: dismissal to November 16, 2023.
On November 16, 2023, Plaintiff amended the complaint to include Defendant Gayane Grigoryan as Doe 1. At Plaintiff's request, the Court continued the order to show cause re: dismissal to February 22, 2024.
On November 22, 2023, Plaintiff amended the complaint to replace Defendant Arman Belgaryan, an incorrect name, with Defendant Arman Beglaryan, the Defendant’s true name.
On December 29, 2023, Arman Belgaryan filed a general denial to the original complaint. On January 17, 2024, Defendant Arman Beglaryan (erroneously sued as Arman Belgaryan) filed a notice of errata stating that (1) Defendant Arman Beglaryan erroneously filed the responsive pleadings as Arman Belgaryan, (2) Defendant’s correct legal name is Arman Beglaryan, and (3) Arman Beglaryan (erroneously sued as Arman Belgaryan) is the name that should be substituted in Defendant’s responsive pleadings previously served and filed.
ORDER TO SHOW CAUSE
The Court has set an order to show cause re: dismissal based on Plaintiff’s failure to file a request for default judgment.
“ ‘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 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.’ ” (Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1743, quoting Cole v. Roebling Construction Co. (1909) 156 Cal. 443, 446.)
The Court continues the order to show cause re: dismissal and orders the parties to submit briefing on whether, in amending the complaint on November 22, 2023 to change the defendant’s name from Arman Belgaryan to Arman Beglarygan, Plaintiff “opened” the default, requiring the Court to vacate the March 6, 2023 default.
In the alternative, the parties may stipulate to set aside the March 6, 2023 default or stipulate that the March 6, 2023 default is valid and constitutes a default of Defendant Arman Beglaryan.
CONCLUSION
The Court CONTINUES the order to show cause re: dismissal for failure to file a request for default judgment to a date the Court will provide on February 22, 2024. The Court will also set a briefing schedule.
Plaintiff is ordered to give notice of this ruling.