Judge: Robert S. Draper, Case: 21STLC03447, Date: 2023-04-28 Tentative Ruling
Case Number: 21STLC03447 Hearing Date: April 28, 2023 Dept: 78
Superior Court of California
County of Los Angeles
Department 78
NORTHERN CALIFORNIA COLLECTION SERVICE, INC.,
Plaintiff,
vs.
MARTIN DIAZ,
Defendant. Case No.: 21STLC03447
Hearing Date: April 28, 2023
[TENTATIVE] RULING RE:
PLAINTIFF NORTHERN CALIFORNIA COLLECTION SERVICE, INC.’S MOTION FOR AN ORDER TO COMPEL THE CLERK OF THE COURT TO ENTER DEFAULT AGAINST DEFENDANT MARTIN DIAZ.
Plaintiff Northern California Collection Service, Inc.’s Motion to Compel the Clerk of the Court to Enter Default is DENIED.
The Court sets an OSC Re: Dismissal for Failure to Request Entry of Default pursuant to Code of Civil Procedure Section 581(g) and 583.410 and California Rule of Court 3.110(g) /Case Management Conference
Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.
FACTUAL BACKGROUND
This is an action for debt collection. The Complaint alleges as follows.
Defendant Martin Diaz (“Defendant”) became indebted to Plaintiff Northern California Collection Service, Inc.’s (“Plaintiff”) assignor, State Compensation Insurance Fund by failing to pay insurance premiums in the sum of $15,891.48 principal. (Compl. ¶ 4.) Defendant has since failed to make any payment on this sum. (Compl. ¶ 5.)
PROCEDURAL HISTORY
On May 3, 2021, Plaintiff filed the Complaint asserting two causes of action:
1. Open Book; and,
2. Monies Due.
On June 22, 2021, Plaintiff entered Default Judgment for Plaintiff and against Defendant.
On August 11, 2021, the Court vacated that default and default judgment.
Also on August 11, 2021, Defendant filed an Answer.
On February 18, 2022, Plaintiff filed a Motion for Summary Judgment.
On June 3, 2022, the Court denied Plaintiff’s Motion for Summary Judgment.
On August 1, 2022, Plaintiff filed a Motion for Leave to Amend the Complaint.
On September 22, 2022, Attorney Andrew Charles Carlton (“Carlton”) filed a Motion to be Relieved as Counsel.
On October 11, 2022, the Court granted Plaintiff’s Motion for Leave to Amend the Complaint.
On October 13, 2022, Plaintiff filed the First Amended Complaint.
On January 5, 2023, the case was reassigned to the instant Department 78.
On January 23, 2023, Defendant filed a Declaration of Demurring Party in Support of Automatic Extension.
On January 24, 2023, Plaintiff filed a Request for Entry of Default as to Defendant.
On January 27, 2023, the Clerk of the Court rejected Plaintiff’s Request for Entry of Default.
On February 6, 2023, Plaintiff filed the instant Motion to Compel the Clerk of the Court to Enter Default against Defendant Martin Diaz.
On March 27, 2023, Carlton’s Motion to be Relieved as Counsel was granted.
As of April 25, 2023, no Opposition to the instant motion has been filed.
DISCUSSION
Plaintiff Northern California Collection Service, Inc. moves the Court for an order compelling the Clerk of the Court to enter default against defendant Martin Diaz.
Plaintiff notes that the First Amended Complaint was served on Diaz’s then attorney of record on December 19, 2022; accordingly, Diaz’s responsive pleading was due no later than Monday, January 23, 2023.
On that date, Defendant filed a Declaration of Demurring Party in Support of Automatic Extension. (Exh. 3.) In that Declaration, Defendant’s former counsel attests that he “Miscalculated the deadline by which to meet and confer regarding [Defendant’s] intended demurrer and motion to strike,” and was therefore “unable to timely meet and confer.” (Ibid.)
Defendant has not filed a Demurrer or Motion to Strike since that date.
On January 24, 2023, Plaintiff filed a Request for Entry of Default against Defendant.
On January 27, 2023, the Clerk of the Court rejected Plaintiff’s Request for Entry of Default, stating “Date on Default on Section 3 is unclear. Defendant filed a Declaration of demurring Party in Support of Automatic Extension.” (Exh. 5.)
Here, Plaintiff moves the Court to compel the Clerk of the Court to enter default against Defendant, arguing that Defendant’s Declaration of Demurring Party in Support of Automatic Extension was procedurally deficient.
Plaintiff is incorrect.
Code of Civil Procedure section 430.41(a)(2) states in relevant part:
If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension.
Here, Defendant filed a declaration on the date that a responsive pleading was due stating that he “miscalculated the deadline by which to meet and confer,” that he “made a good faith effort to meet and confer,” and that “because of [his] error in setting a time to do it, [Defendant] was unable to timely meet and confer.” (Exh. 3.)
Plaintiff contends that the declaration was required to state “any objections to the Exhibit 1 amended complaint,” “the causes of action that [Defendant] believes are subject to demurrer” and “the law supporting his claim.” (Motion at p. 4.)
This language is taken from Code of Civil Procedure section 430.41(a)(1), which details a demurring party’s obligation while partaking in the meet and confer process. These requirements are irrelevant here, where Defendant stated that he could not partake in the meet and confer process.
Indeed, Plaintiff’s motion directs the Court’s attention to Judicial Council Form CIV-141 as indicative of what language Defendant needed to include in his declaration of failure to meet and confer to make that declaration effective.
The declaration in Form CIV-141 states, in the entirety:
I intend to file a demurrer in this action. Before I can do so, I am required to meet and confer with the party who filed the pleading that I am demurring to at least five days before the date when the responsive pleading is due. We have not been able to meet and confer. I have not previously requested an automatic extension of time. Therefore, on timely filing and serving a declaration that meets the requirements of Code of Civil Procedure section 430.41, I am entitled to an automatic 30-day extension of time within which to file a responsive pleading.
I made a good faith attempt to meet and confer with the party who filed the pleading at least five days before the date the responsive pleading was due. I was unable to meet with that party because:
The Judicial Council’s suggested language to request an automatic extension is substantially similar to that of Defendant’s declaration. Plaintiff’s proffered evidence indicates that Defendant properly requested and received an automatic extension pursuant to Code of Civil Procedure section 430.41(a)(2), which states that “[t]he 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension.”
Accordingly, the Clerk of the Court properly rejected Defendant’s January 24, 2023 Request for Entry of Default; Defendant was not in default.
Accordingly, Plaintiff’s Motion for an Order Compelling the Clerk of the Court to Enter Default Against Defendant Martin Diaz is denied.
Should Plaintiff believe that Defendant is currently in default as Defendant has not filed a Demurrer or Answer since receiving his thirty-day extension, Plaintiff may file another Request for Entry of Default with the Clerk of the Court.
CONCLUSION
Plaintiff’s Motion for an Order to Compel the Clerk of the Court to Enter Default Against Defendant Martin Diaz is DENIED.
DATED: April 28, 2023
____________________________
Hon. Jill T. Feeney
Judge of the Superior Court
