Judge: Martha K. Gooding, Case: 22-01299440, Date: 2023-06-12 Tentative Ruling

Motion for Entry of Judgment

The Motion by Plaintiff Rickie Hulsey (“Plaintiff”) for default judgment on her cause of action for medical malpractice is DENIED.

Plaintiff moves for entry of default against Defendant Vera Trofimenko, M.D. (“Defendant”) on Plaintiff’s medical malpractice claim, on the ground that Defendant “failed to defend” against this claim in the demurrer or motion to strike Defendant filed.

Plaintiff does not deny that Defendant’s demurrer was timely filed within 40 days after substitute service. (Code Civ. Proc. § 415.20, subd. (a).) However, Plaintiff appears to believe that default can be entered on claims that were not the subject of demurrer. This is incorrect.

A demurer is an allowable pleading. (Code Civ. Proc., § 422.10.) Its filing prevents entry of default. (Code Civ. Proc., § 585, subd. (a).) It does not matter that Defendant did not demur to the medical malpractice claim, because the applicable rules expressly provide that a “demurrer to a cause of action may be filed without answering other causes of action.” (Cal. R. Ct. Rule 3.1320, subd. (b); see also Cal. Prac. Guide Civ. Pro. Before Trial at¶ 7:34.1 [“A demurrer may be filed to one of several causes of action in the complaint, without answering the other causes of action. No default can be taken while the demurrer is pending.”].)

Thus, at this juncture, there is no basis for entry of default against Defendant.

Defendant is ordered to give notice.