Judge Nathan Vu, Case 30-2022-01253452 2022-11-07 Tentative Ruling

Judge: Nathan Vu, Case: 30-2022-01253452, Date: 2022-11-07 Tentative Ruling

Please Note: The hearing on this matter has been scheduled for 8:30 A.M.

Motion to Deem Facts Admitted

Plaintiffs Michelle Arlene Talley Ellsworth’s, Christian Horner Talley’s, Christopher Horner Talley’s, Denise Suzanne Talley Rall’s, and Julie Ann Talley Allen’s motion to deem facts admitted is CONTINUED to 12/12/2022 at 8:30 am in Department N15.

Plaintiffs Michelle Arlene Talley Ellsworth, Christian Horner Talley, Christopher Horner Talley, Denise Suzanne Talley Rall, and Julie Ann Talley Allen (Plaintiffs) move for an order that certain allegations in in the First Amended Complaint (FAC) be admitted as to Defendant Jay P. Erb because Defendant Erb did not answer these paragraphs in his Verified Answer.

Plaintiffs also move that certain statements in Defendant Erb’s declarations dated 07/08/2022 be deemed inadmissible because the statements are inconsistent with the admitted allegations.

Civil Procedure Code section 431.20(a) provides that “[e]very material allegation of the complaint or cross-complaint, not controverted by the answer, shall, for the purposes of the action, be taken as true.” (Code Civ. Proc., § 431.20, subd. (a).) This is typically applied in a case involving a default, where no evidence is required to establish liability. (See Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 883–884.)

However, Defendant Erb has filed a proposed First Amended Answer to the First Amended Complaint (ROA #162) and a motion for leave to file the First Amended Answer (ROA #164). That motion for leave to amend the Answer is scheduled for hearing on 12/12/2022.

A ruling granting the motion for leave to file the First Amended Answer would moot this motion. Therefore, it would be prudent to continue this motion to 12/12/2022, so that it may be heard immediately after the motion for leave to file.

With respect to the motion to deem as inadmissible certain statements made in Defendant Erb’s declarations dated 07/08/2022, it appears that the declarations in question were filed in support of Defendant Erb’s opposition to the motion to modify the 05/09/2022 preliminary injunction and motion for an order to show cause why defendants should not be held in contempt. (See ROA #98 & ROA #100.)

The motion to modify the 05/09/2022 preliminary injunction was decided by the Court on 08/08/2022 and the motion for an order to show cause was decided by the Court on 08/27/2022. (See ROA #127 and ROA #136.) It does not appear that Plaintiffs objected to the declarations prior to the Court’s decision on them. Thus, Plaintiffs’ objection to the statements as inadmissible have been waived and the issue of the admissibility of the statements is moot.

The motion to deem the statements inadmissible must be denied, regardless of the outcome of the motion for leave to file.

Defendant Erb shall give notice of this ruling.