Judge: Lynne M. Hobbs, Case: 19STCV20378, Date: 2025-01-16 Tentative Ruling

Case Number: 19STCV20378    Hearing Date: January 16, 2025    Dept: 61

INDUSTRIAL STRENGTH INVESTMENTS M, LLC vs DEREK JAMES JONES, et al.

Tentative:

Defendant Derek Jones’s Motion for Relief from Default and Default Judgment is DENIED.

Plaintiff to give notice.

MOTION TO VACATE 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. § 473, subd. (d).)

Defendant Derek Jones (Defendant) moves to vacate the default judgment entered against him on March 23, 2020, on the grounds that said judgment was entered on a default which had erroneously been entered after he filed an answer on February 4, 2020. (Motion at pp. 6–7.)

Defendant’s argument appears to rely upon a misunderstanding of the procedural history of this case, resting upon a review of the court docket without reading the documents that comprise it. Simply put, Defendant’s default was entered before he filed his answer, not after, and therefore cannot be set aside. His default was entered on January 6, 2020, as reflected in the document filed that date. Defendant did not file his answer until February 4, 2020, almost a month later. The subsequent February 11, 2020 request for entry of default that Defendant claims is void is in actuality a request for entry of court judgment, resting upon the default that had already been properly entered before Defendant filed his answer.*

Defendant in reply argues that the January 6, 2020 request for entry of default was rejected, as evidenced by the notice of rejection filed that same date. (Reply at pp. 1–2.) But this is not an accurate reflection of the record. Four requests for entry of default were filed prior to Defendant’s filing of his answer — two on December 16, 2020 (against Defendant Jones and Co-Defendant Ines Kuperschmit), one on January 6, 2020, and one on January 10, 2020. Yet the docket shows only two notices of rejection of default: one filed on January 6, 2020, and another on January 22, 2020. Review of these rejections confirms what the arithmetic of the four requests and two rejections suggests: that only the December 16, 2019 and January 10, 2020 defaults were rejected, the former on the grounds that the Defendant’s name in section 6b of the form did not match that on the complaint, the latter on the grounds that default had already been entered on January 6, 2020. Of course, the actual January 6, 2020 form confirms that default was entered on that date.

“Where a defendant has filed an answer, neither the clerk nor the court has the power to enter a default based upon the defendant's failure to appear at trial, and a default entered after the answer has been filed is void.” (Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 863.) Here, however, Defendant’s answer was filed after the entry of default against him. “An answer filed after a default has been properly entered is a nullity.” (Remainders, Inc. v. Superior Court In and For Los Angeles County (1961) 192 Cal.App.2d 411, 412.) Defendant’s answer was a nullity, and his default was properly entered.

The motion is therefore DENIED.
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* Default was entered after Defendant’s demurrer was overruled on October 8, 2018, and after the allotted time for him to file an answer had expired.