Judge: Michael E. Whitaker, Case: 23SMCV00036, Date: 2023-09-15 Tentative Ruling

Case Number: 23SMCV00036    Hearing Date: September 15, 2023    Dept: 207

TENTATIVE RULING

BACKGROUND

Plaintiff SM 10000 Property LLC (“Plaintiff”) filed the original unlawful detainer complaint in this action on January 3, 2023.  Plaintiff personally served the summons and complaint on Defendant Tyrina Lee (“Defendant”) on January 10, 2023.  Defendant, represented by counsel, timely answered the complaint and asserted affirmative defenses on February 7, 2023.

            On the eve of trial, the parties reached a partial settlement, whereby Defendant agreed to vacate and pay the past due rent by April 27, 2023.  (See March 29, 2023 Stipulation and Order for Partial Settlement.)  On March 29, the Court granted the stipulation and order for partial settlement and dismissed the case without prejudice, retaining jurisdiction to enforce the settlement.  (March 29, 2023 Minute Order re: Non-Jury Trial.) 

Defendant apparently vacated the unit on April 28, 2023, without remitting payment.  (See Olsen Decl. in support of Ex Parte Application to Set Aside Dismissal, ¶ 7 and Ex. 2.)  On May 15, 2023, Plaintiff filed an amended complaint for breach of contract to recoup the amount of past-due rent owed, plus interest, costs and attorneys’ fees.  (See Amended Complaint ¶¶ 7-8 and prayer.)  Plaintiff properly electronically served the Amended Complaint on counsel for Defendant on May 15, 2023.  (See Declaration of Service attached to First Amended Complaint; Gillette v. Burbank Community Hosp. (1976) 56 Cal.App.3d 430, 433 [no new summons required for defendant who already appeared].)  On July 11, 2023, Plaintiff applied ex parte to set aside the dismissal, which the Court granted on July 13, 2023.  (See July 13, 2023 Minute Order.)

On July 7, 2023, Plaintiff submitted the first request for entry of default, which the clerk rejected because there was no proof of service.  On July 25, Plaintiff again requested an entry of default, which the clerk rejected because the proof of service indicated the request for entry of default was served electronically on plaintiff’s counsel, and electronic service of a default package is not valid unless approved by the Court. 

Plaintiff submitted a third request for entry of default on August 7, again showing electronic service on Defendant’s counsel, which the clerk rejected for faulty proof of service.

On August 21, 2023, Plaintiff filed the instant motion for entry of default and acceptance of the default judgment paperwork regarding Defendant Tyrina Lee.

ANALYSIS

The Court cannot grant a default judgment before the clerk has entered a default against Defendant.  The clerk has not yet entered a default because the Court has not yet received a proof of service indicating that Defendant was served the request for entry of default by personal service or by mail. 

However, there is a bigger issue precluding a default judgment here.  “[W]hen a complaint is amended after answer, the defendant is not bound to answer de novo. He may do so if he chooses; but, if he does not elect to do so, his original answer stands as his answer to the amended complaint; and in such case he will not be in default except as to the additional facts set up in the amended complaint, and not put in issue by the answer.”  (Gray v. Hall (1928) 203 Cal. 306, 313.)  Moreover, “entry of a default in a case where the original answer can stand as an answer to the amended complaint constitutes error.”  (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 809.)

Here, the original unlawful detainer action was based upon the lease agreement between Plaintiff and Defendant, arising from Defendant’s failure to pay the rent owed and continued possession of the premises.  Defendant answered that complaint and asserted affirmative defenses.  After Defendant vacated the premises, Plaintiff amended the complaint to now seek only past due rent amounts owed (plus interest, costs, and attorneys’ fees), since Defendant has relinquished possession of the property back to Plaintiff.  The same lease agreement is attached to the amended complaint as to the original complaint, and the main difference between the complaints, aside from the fact that possession of the property is no longer in dispute, is that the amount of the back-owed rent has increased, due to Defendant’s continued possession of the property during the pendency of the lawsuit.  As such, the Court finds that there are no new substantive allegations requiring Defendant to answer the amended complaint.

Therefore, Defendant’s answer to the original unlawful detainer complaint stands as an answer to the amended complaint as well.  As such, the Court cannot properly enter a default judgment against Defendant.

CONCLUSION

            For the reasons stated, the Court denies Plaintiff’s Motion for Entry of Default Judgment and for Acceptance of Default Judgment Paperwork.  Further, the Court orders the Status Conference Re: Request for Entry of Default/Request for Entry of Default Judgment set for September 27, 2023 vacated.

            The Court sets a Trial Setting Conference on October 16, 2023 at 8:30 A.M. in Department 207. 

            Plaintiff shall provide notice of the Court’s orders and file a proof of service regarding the same.

DATED:  September 15, 2023                                               ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court