Judge: Michael P. Linfield, Case: 23STCV21000, Date: 2024-02-16 Tentative Ruling

Case Number: 23STCV21000    Hearing Date: February 16, 2024    Dept: 34

SUBJECT:        Motion to Enter Default of Defendant and to Strike Answer to the Complaint

Moving Party: Plaintiff George W. Angel

Resp. Party:    Defendant Genevieve Angel Dial

The Motion is DENIED.

BACKGROUND:

On August 31, 2023, Plaintiff filed his Complaint against Defendant Genevieve Angel Dial on causes of action of malicious prosecution, abuse of process, slander, intentional infliction of emotional distress, negligence per se, and negligence.

On November 27, 2023, Plaintiff filed Judicial Council Form CIV-100, Request for Entry of Default. The Clerk’s Office did not enter default, reasoning that proof of service of statement of damages was required.

On December 5, 2023, Plaintiff filed his Judicial Council Form CIV-050, Statement of Damages.

On December 5, 2023, Plaintiff filed another Judicial Council Form CIV-100, Request for Entry of Default. The Clerk’s Office did not enter default, reasoning that the request was premature because the proof of service for the statement of damages was filed on December 5, 2023 and thus the first date default could be entered was January 4, 2024.

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

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

On January 5, 2024, Plaintiff filed his Motion to Enter Default of Defendant and to Strike Answer to the Complaint.

On February 5, 2024, Defendant filed her Opposition to the Motion.

On February 8, 2024, Plaintiff filed his Reply in support of the Motion.

ANALYSIS:

I.          Legal Standard

“Judgment may be had, if the defendant fails to answer the complaint, as follows: (a) In an action arising upon contract or judgment for the recovery of money or damages only, if the defendant has, or if more than one defendant, if any of the defendants have, been served, other than by publication, and no answer, demurrer, notice of motion to strike of the character specified in subdivision (f), notice of motion to transfer pursuant to Section 396b, notice of motion to dismiss pursuant to Article 2 (commencing with Section 583.210) of Chapter 1.5 of Title 8, notice of motion to quash service of summons or to stay or dismiss the action pursuant to Section 418.10, or notice of the filing of a petition for writ of mandate as provided in Section 418.10 has been filed with the clerk of the court within the time specified in the summons, or within further time as may be allowed, the clerk, upon written application of the plaintiff, and proof of the service of summons, shall enter the default of the defendant or defendants, so served, and immediately thereafter enter judgment for the principal amount demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for in Section 425.115, or a lesser amount if credit has been acknowledged, together with interest allowed by law or in accordance with the terms of the contract, and the costs against the defendant, or defendants, or against one or more of the defendants. If, by rule of court, a schedule of attorneys’ fees to be allowed has been adopted, the clerk may include in the judgment attorneys’ fees in accordance with the schedule (1) if the contract provides that attorneys’ fees shall be allowed in the event of an action thereon, or (2) if the action is one in which the plaintiff is entitled by statute to recover attorneys’ fees in addition to money or damages. The plaintiff shall file a written request at the time of application for entry of the default of the defendant or defendants, to have attorneys’ fees fixed by the court, whereupon, after the entry of the default, the court shall hear the application for determination of the attorneys’ fees and shall render judgment for the attorneys’ fees and for the other relief demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for in Section 425.115, or a lesser amount if credit has been acknowledged, and the costs against the defendant, or defendants, or against one or more of the defendants.” (Code Civ. Proc., § 585, subd. (a).)

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(1).)

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

“(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

“(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

(Code Civ. Proc., § 436.)

“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (Cal. Rules of Court, rule 3.1322(a).)

II.       Discussion

Plaintiff moves the Court to enter default on Defendant, citing a variety of sections of the Code of the Civil Procedure and appellate opinions. (For example, Code Civ. Proc., §§ 116.725; 412.20, subd. (a)(3); 473; 585, subd. (a); 1167, subd. (a).) Plaintiff further moves the Court to strike Defendant’s Answer to the Complaint.

The Court declines to either enter default of strike Defendant’s answer.

First and foremost, the Court is unaware of any mistake made by the Clerk’s Office that should led to their rejecting Plaintiff’s request to enter default on Defendant on December 5, 2023.

“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).)

“The statement referred to in subdivision (b) shall be served in the following manner: (1) If a party has not appeared in the action, the statement shall be served in the same manner as a summons.” (Code Civ. Proc., § 425.11, subd. (d)(1).)

“Except as otherwise required by statute, a summons shall be directed to the defendant, signed by the clerk and issued under the seal of the court in which the action is pending, and it shall contain: . . . (6) The following introductory legend at the top of the summons above all other matter, in boldface type, in English and Spanish: ‘Notice! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read information below.’” (Code Civ. Proc., § 412.20, subd. (a)(6).)

In order to obtain damages on a default judgment, plaintiffs must first list a specific amount of damages in their pleading. When no specific amount of damages is listed in the pleading, the pleading must be amended or a statement of damages must be filed.

Here, Plaintiff did not list any specific amount of damages in his pleading. Thus, the Clerk’s Office correctly rejected his request for entry of default on November 27, 2023. When Plaintiff attempted to enter default again on the same day that he filed his Statement of Damages, the Clerk’s Office correctly rejected his request for entry of default. By requirement of statute, when the opposing party has not appeared in the action, a statement of damages must be served in the same way as a summons — i.e., with thirty days of notice before default can be entered.

“We cannot allow a default judgment to be entered against defendants without proper notice to them of the amount of damages sought. A defendant is entitled to actual notice of the liability to which he or she may be subjected, a reasonable period of time before default may be entered.” (Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 435; accord Sass v. Cohen (2020) 10 Cal.5th 861, 870 [“As is relevant here, the plaintiff must serve such a statement of damages ‘before a default may be taken.’”].)

Even if less than thirty days of notice were allowed, it would not be reasonable to find that there had been sufficient notice in this situation. Had the Clerk’s Office entered default, the simultaneous filing of the statement of damages and the request for entry of default would have resulted in no notice to Defendant whatsoever of the amount of liability she faced.

Second, even if the Clerk’s Office had entered default, Defendant’s Answer to the Complaint and Opposition to this Motion indicate to the Court that such a default might well be vacated and/or set aside.

Given that there is no default and that it would be inappropriate to enter default on Defendant, it would also be inappropriate to strike Defendant’s Answer without the entry of default.

III.     Conclusion

The Motion is DENIED.