Judge: Mark H. Epstein, Case: 22SMCV01328, Date: 2024-05-23 Tentative Ruling

Case Number: 22SMCV01328    Hearing Date: May 23, 2024    Dept: I

The motion to strike the answer to the complaint is GRANTED; the motion to strike the cross-complaint is DENIED.

Plaintiffs filed a breach of contract case against defendant.  Defendant cross-complained in November 2023, but did not file an answer.  Defendant’s default was entered on 1/19/24 after which defendant attempted to answer.  Plaintiff seeks to strike the answer and the cross-complaint.  The motion is not opposed.

Plaintiffs argue that there was no right to answer after default was entered.  That is correct.  Defendant must move to have the default vacated (and win the motion) before filing an answer.  Therefore, the motion to strike the answer must be GRANTED.  The cross complaint issue is an odd one.  Generally a cross-complaint is filed before or at the same time as the answer to the complaint.  Thus, the statute is clear that a cross-complaint may be filed before an answer.  (Code Civ. Proc. sec. 428.50.)  That is what happened here.  The cross-complaint was filed before the default was taken, and it was therefore proper.

The court urges the parties to work together, at least on procedure, rather than file or be forced to file motions such as these.  For example, the court anticipates a motion to vacate the default and allow an answer to be taken.  Plaintiff should think long and hard about whether there are really good grounds to oppose such a motion given California’s strong public policy favoring resolutions on the merits.  If there is, then of course plaintiff can oppose.  But if not, plaintiff ought to consider allowing defendant to proceed by stipulation rather than forcing defendant to file a motion and this court to work it up.