Judge: Robert S. Draper, Case: 22STCV10827, Date: 2023-03-08 Tentative Ruling

Case Number: 22STCV10827    Hearing Date: March 8, 2023    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Plaintiff Julia Payne’s Motion to Strike Defendant Tiffany Elder’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 Defendant Tiffany Elder (“Elder”) as Doe Number 2.

On November 29, 2022, Plaintiff filed a Proof of Service as to Elder indicating that Elder had been personally served with the Summons and complaint on October 26, 2022.

On December 1, 2022, Plaintiff filed an Amended Proof of Service as to Elder again reflecting that Elder had been served on October 26, 2022.

Also on December 1, 2022, Plaintiff filed a Request for Entry of Default as to Elder.

On December 6, 2022, the Clerk denied Plaintiff’s Request for Entry of Default as to Elder, finding the Proof of Service did not indicate that the First Amended Complaint was served on Elder, and that the Default was premature based on the service date for the Statement of Damages.

On December 13, 2022, Elder filed an Answer.

Also on December 13, 2022, Plaintiff filed an Amended Request for Entry of Default.

On December 16, 2022, the Clerk rejected Plaintiff’s Request for Entry of Default as an Answer was filed on December 13, 2022.

On January 17, 2023, Plaintiff filed the instant Motion to Strike Defendant Tiffany Elder’s Answer and Enter Default.

No Opposition has been filed.

DISCUSSION 

I.                MOTION TO STRIKE

Plaintiff moves to strike Elder’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 Elder’s Answer as it was not timely filed. Additionally, Plaintiff contends her request for default was improperly rejected. Plaintiff notes that Elder was served on October 26, 2022. Elder’s Answer was filed on December 12, well after it was due pursuant to Code of Civil Procedure section 412.20(a)(3).

Plaintiff contends that where a plaintiff’s default request has been improperly rejected and the defendant subsequently files a late answer, the defendant’s answer must be stricken and default entered. (Todd v. Everett (1966) 247 Cal.App.2d 209.) Accordingly, Plaintiff argues, the Court must strike Elder’s Answer and Enter Default.

Plaintiff is incorrect as Default was properly rejected. The Clerk, in denying Plaintiff’s December 1 Request for Entry of Default, stated that default was premature as Plaintiff’s statement of damages had been served too soon before her request for default; the proof of service shows that Plaintiff served the Statement of Damages on Elder on November 17, 2022.

Though the Code of Civil Procedure does not provide a mandatory deadline for when a statement of damages must be served prior to default, California courts have repeatedly held that, as a matter of due process, “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 Ca.3d 428, 435.)

The Court finds that Plaintiff did not provide Elder with actual notice of the liability to which she may be subjected a reasonable period of time before default was requested.

Finally, the Court notes that California courts have long recognized an ethical duty to attempt to bring an action to trial or other disposition before seeking default. As the Court of Appeal stated:

The ethical obligation to warn opposing counsel of an intent to take a default is now reinforced by a statutory policy that all parties cooperate in bringing the action to trial or other disposition. [Citation]. Quiet speed and unreasonable deadlines do not qualify as ‘cooperation’ and cannot be accepted by the courts. [Citation]. Attorneys who do not comply with that obligation are practicing in contravention of the policy o the state and menacing the future of the profession. [Citation.] (Shapell Socal Rental Properties, LLC v. Chico’s FAS, Inc. (2022) 85 Cal.App.5^th 198 at 213-14.)

Though Plaintiff represents herself pro per in this action, the obligation to try each matter on the merits rather than hastily seeking resolution via default extends to her. The Court notes with concern that of the nineteen currently named defendants in this action, three have answered, nine have entered default, and Plaintiff has unsuccessfully requested default for several of the remaining defendants. This is surprising, as the majority of the defendants, including Elder, were first named in this action merely three months ago.

This Court appreciates its ethical obligation to try all matters on their merits and views default judgment as a matter of last resort rather than an effective litigation technique. Plaintiff must attempt to exhaust all remedies before seeking default, as the Court does not look favorably upon default judgments where the defendant has not been afforded an adequate opportunity to respond.  

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

DATED:  March 8, 2023

___________________________

Hon. Robert S. Draper 

Judge of the Superior Court