Judge: Robert S. Draper, Case: 22STCV10827, Date: 2022-10-20 Tentative Ruling

Case Number: 22STCV10827    Hearing Date: October 20, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Plaintiff Julia Payne’s Motion to Strike Defendant Marco Penta’s Answer is DENIED.

FACTUAL BACKGROUND

This is an action for defamation and harassment. The operative First Amended Complaint (“FAC”) alleges as follows.

Plaintiff Juliana Payne (“Plaintiff”) is a children’s book author and filmmaker. (FAC ¶ 4.) Through her work, Plaintiff became acquainted with Defendant Naima Richardson, A.K.A. Kitty Bradshaw (“Richardson”). (FAC ¶ 5.) Plaintiff hosted Richardson on Plaintiff’s Twitch stream. (FAC ¶ 9.) Shortly thereafter, Richardson’s behavior toward Plaintiff changed. (FAC ¶ 14.)

On April 1, 2021, Richardson hosted a Twitch Stream on which Richardson made numerous malicious statements of purported facts about Plaintiff that Richardson knew to be false. (FAC ¶ 17.) Richardson began to regularly post on social media that Plaintiff was stalking Richardson. (FAC ¶ 20.) Richardson has continued to harass and defame Plaintiff, despite Plaintiff’s attempts to rebut the information.

PROCEDURAL HISTORY 

On March 30, 2022, Plaintiff filed the Complaint asserting six causes of action:

1.    Harassment;

2.    Invasion of Privacy – False Light;

3.    Defamation;

4.    Intentional Infliction of Emotional Distress;

5.    Intentional Interference with Prospective Economic Advantage; and,

6.    Injunctive Relief.  

On April 15, 2022, Plaintiff file the operative First Amended Complaint, adding a cause of action for Negligence.

On May 2, 2022, Plaintiff filed a Doe Amendment naming Respondent Marco Penta (“Penta”) as Doe Number 3.

On May 20, 2022, Plaintiff filed a Proof of Service of Summons as to Penta reflecting service by mail and acknowledgement of service. The Proof of Service indicates summons were sent on May 2, 2022.

On June 16, 2022, Plaintiff requested the Court enter Default as to Penta. Default was not entered as there was no proof of service as to the First Amended Complaint.

On June 28, 2022, Plaintiff filed a Proof of Service as to Penta.

On June 28, 2022, Plaintiff requested the Court enter Default as to Penta. Default was again not entered as the Proof of Service on the First Amended Complaint did not indicate service on the Amendment to the Complaint.

On July 5, 2022, Plaintiff filed an Ex Parte Application for Order Authorizing Entry of Default Against Penta. That Application was denied.

On July 15, 2022, Penta filed an Answer.

On September 16, 2022, Plaintiff filed the instant Motion to Strike Penta’s Answer.

On October 6, 2022, Penta filed an Opposition.

On October 13, 2022, Plaintiff filed a Reply.

DISCUSSION 

I.              MOTION TO STRIKE

Plaintiff moves to strike Penta’s Answer in its entirety.

A motion to strike can be made to strike irrelevant, false or improper matter inserted in any pleading or to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of the court. (CCP § 436.)  

Here, Plaintiff moves to strike Penta’s Answer as it was not timely filed. Plaintiff notes that Penta was deemed served on May 12, 2022. His Answer was filed on July 15, 2022, roughly a month after it was due pursuant to Code of Civil Procedure section 412.20(a)(3).

Plaintiff moves the Court to use its discretionary power to strike Penta’s answer, though he had not yet entered default. (See Buck v. Morrossis (1952) 114 Cal.App.2d 461, 464-65.)

In Opposition, Penta argues that his failure to timely file an Answer was not prejudicial, as Penta has continued to file Doe amendments and serve those newly added defendants after his Answer was filed.

Additionally, Penta contends that his failure to file a timely Answer was due to error rather than an attempt to delay the proceedings. Penta states that he did not initially receive the legal documents as someone else in his household received them. (Penta Decl. ¶ 3.) Then, Penta claims he did not realize he was the subject of the suit, as he was not listed by name as a defendant on the caption of the Complaint. (Id. ¶ 4.) Finally, Penta states that when he received a Statement of Damages from Plaintiff, he realized he was being sued, and swiftly filed his answer. (Id. ¶¶ 5-6.)

The Court finds that Penta’s failure to timely respond was neither prejudicial to Plaintiff, nor the result of Plaintiff’s concerted effort to delay the proceedings. Instead, Plaintiff’s failure to respond was due to understandable error which would have constituted good cause to vacate default had default been entered.

The Court will not strike Penta’s Answer such that he enters default, then go through the unnecessary motion practice of hearing a Motion to Vacate Default based on the argument currently before it.

Accordingly, Plaintiff’s Motion to Strike Penta’s Answer is DENIED.

DATED:  October 20, 2022

___________________________

Hon. Robert S. Draper 

Judge of the Superior Court