Judge: Malcolm Mackey, Case: 22STCV06742, Date: 2022-08-05 Tentative Ruling

Case Number: 22STCV06742    Hearing Date: August 5, 2022    Dept: 55

MONTANA MARKETING & SALES, INC. v. TRACY MURPHY     22STCV06742

Hearing Date:  8/5/22,  Dept. 55

#5:   MOTION TO SET ASIDE DEFAULT.

Notice:  Okay

Opposition

MP:  Defendant

RP:  Plaintiff

Summary

On 2/23/22, Plaintiff filed a Complaint, alleging that Defendant breached a written agreement with Plaintiff, by failing to pay $21,911.00 for a work of improvement, with labor, services, equipment, and materials furnished by Plaintiff, at 45635 Chama Drive, Lancaster.

The causes of action are:  BREACH OF CONTRACT; FORECLOSURE OF MECHANIC'S LIEN; APPLICATION TO STAY PROCEEDINGS AND FORECLOSURE OF MECHANIC'S LIEN PENDING ARBITRATION.

MP Positions

Moving party requests an order vacating default, on grounds including the following:

·         On or about April 21, 2022, the Defendant, Tracy Murphy filed a demurrer as a responsive pleading.

·         On or about April 25, 2022, the plaintiff filed a request for entry of default, and thereafter the court clerk erroneously entered the default, ignoring that the Defendant filed a demurrer.

·

RP Positions

Opposing party advocates denying, for reasons including the following:

·         The motion appears to be based on C.C.P. §473 (b) and (d), but there is no rational explanation as to what the mistake, inadvertence, surprise or excusable neglect may be on the part of Defendant.  Instead, Defendant is blaming the Court Clerk for error in entering the default against the defendant, after a demurrer was filed.

·         No responsive pleading was lodged.

Tentative Ruling

The motion is granted.

The Court vacates and sets aside the default against Defendant entered 4/25/22.

Plaintiff’s request for default judgment, filed 6/23/22, is rejected.

Defendant’s demurrer is still set for hearing on 9/30/22 at 8:30 a.m. in Department 55.

The default entry clearly was in error, because Defendant had filed a demurrer on 4/21/22, set for hearing on 9/30/22.

A proper response, filed before default entry, precludes entry of default. CCP § 585(a), (b), (c), (e), 586;  In re Brian W. (1996) 48 Cal.App.4th 429, 434, n. 3;  Fiorentino v. City of Fresno (2007) 150 Cal.App.4th 596, 605;  In re Brian W. (1996) 48 Cal. App. 4th 429, 434, n.3  (“A ‘default’ occurs when a defendant in a civil action fails to answer.”).