Judge: Michael P. Linfield, Case: 23STCV20997, Date: 2024-05-01 Tentative Ruling

The Court often posts its tentative several days in advance of the hearing. Please re-check the tentative rulings the day before the hearing to be sure that the Court has not revised the ruling since the time it was posted.

Please call the clerk at (213) 633-0154 by 4:00 pm. the court day before the hearing if you wish to submit on the tentative.

Case Number: 23STCV20997    Hearing Date: May 1, 2024    Dept: 34

SUBJECT:        Request for Default Judgment

Moving Party: Plaintiff Geraldine Angel

Resp. Party:    None

Plaintiff’s Request for Default Judgment is DENIED without prejudice.

BACKGROUND:

On August 31, 2023, Plaintiff Geraldine Angel filed her Complaint against Defendant Genevieve Angel Dial on various causes of action arising from what Plaintiff alleges is a prolonged pattern of repeated and malicious conduct.

On October 16, 2023, Plaintiff filed two proofs of service with the Court.

On November 27, 2023, by request of Plaintiff, the Clerk’s Office entered default on Defendant.

On December 5, 2023, Plaintiff filed Judicial Council Form CIV-050, Statement of Damages (Personal Injury or Wrongful Death).

On December 21, 2023, Defendant filed an Answer to the Complaint.

On December 22, 2023, the Court found related cases 23STCV20996, 23STCV20997, 23STCV20999, and 23STCV21000, and designated 23STCV20996 as the lead case.

On January 29, 2024, Plaintiff filed:

(1)       Judicial Council Form CIV-100, Request for Dismissal;

(2)       Judicial Council Form JUD-100, Proposed Judgment;

(3)       Judicial Council Form MC-010, Memorandum of Costs (Summary); and

(4)       Declaration of Geraldine Angel.

On January 29, 2024, by request of Plaintiff, the Clerk’s Office dismissed with prejudice the doe defendants from the Complaint.

ANALYSIS:

I.          Legal Standard

“The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115; but in any other case, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. The court may impose liability, regardless of whether the theory upon which liability is sought to be imposed involves legal or equitable principles.” (Code Civ. Proc., § 580, subd. (a).)

“When a complaint is filed in an action to recover damages for personal injury or wrongful death, the defendant may at any time request a statement setting forth the nature and amount of damages being sought. The request shall be served upon the plaintiff, who shall serve a responsive statement as to the damages within 15 days. In the event that a response is not served, the defendant, on notice to the plaintiff, may petition the court in which the action is pending to order the plaintiff to serve a responsive statement.” (Code Civ. Proc., § 425.11, subd. (b).)

“If no request is made for the statement referred to in subdivision (b), the plaintiff shall serve the statement on the defendant before a default may be taken.” (Code Civ. Proc., § 425.11, subd. (c).)

II.       Discussion

There appear to be three issues here.

First, Plaintiff’s Complaint does not contain any specific statement of damages. Furthermore, Plaintiff moved for entry of default before serving her CIV-050, Statement of Damages on Defendant. Together, this violated Code of Civil Procedure section 425.11, subdivision (c). Thus, default was improperly entered on November 27, 2023.

Second, although default was improperly entered on November 27, 2023, Defendant did not move to set aside and/or vacate the default. Instead, Defendant filed her Answer, even though the entry of default terminated her right to do so until the default had been set aside or default judgment entered. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.Ap.3d 381, 385–386, citations omitted.) Thus, Defendant’s Answer is a nullity.

Finally, Plaintiff requests default judgment in the amount of $258,170.26. However, the Court cannot grant default judgment when: (1) default was improperly entered; and (2) the statement of damages was served after default was entered.

III.     Conclusion

Plaintiff’s Request for Default Judgment is DENIED without prejudice.