Judge: Ronald F. Frank, Case: 23TRCV00841, Date: 2024-07-11 Tentative Ruling
Case Number: 23TRCV00841 Hearing Date: July 11, 2024 Dept: 8
HEARING DATE: July 11, 2024
CASE NUMBER: 23TRCV00841
CASE NAME: Carlitta Smith v. Robin Lynn Thompson, et al.
MOVING PARTY: Defendant, Robin Lynn Thompson
RESPONDING PARTY: Plaintiff, Carlitta Smith
TRIAL DATE: Not Set.
MOTION: (1) Motion to Strike
Tentative Rulings: (1) DENIED, without prejudice to being re-filed after the default is lifted or vacated.
Alternatively, perhaps the parties could consider a stipulation to vacate the clerk’s default and to withdraw the punitive damages allegations in exchange for Defendant’s agreement to file an answer rather than a pleading motion
I. BACKGROUND
A. Factual
On March 21, 2023, Plaintiff, Carlitta Smith (“Plaintiff”) filed a complaint against Defendants, Robin Lynn Thompson, Terry Holt as Trustee of the Holt Living Trust dated September 6, 2002, Sandra Hold as Trustee of the Holt Living Trust dated September 6, 2002, and DOES 1 through 25. The complaint alleges causes of action for: (1) Negligence; (2) Common Law Strict Liability; and (3) Strict Liability (Dog Bite Statute).
On February 9, 2024, the Court’s Clerk entered Default against Defendant, Robin Lynn Thompson.
Four months later, without having first obtained relief from the default, Defendant, Robin Lynn Thompson (“Thompson” and/or “Defendant Thompson”) filed a Motion to Strike portions of Plaintiff’s complaint.
B. Procedural
On June 11, 2024, Defendant Thompson filed this Motion to Strike. On June 27, 2024, Plaintiff filed an opposition brief. To date, no reply brief has been filed.
II. ANALYSIS
A. Motion to Strike
¿ 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. (Code Civ. Proc., § 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)¿¿
B. Discussion
Here, Defendant Thompson’s motion seeks to strike the following portions of Plaintiff’s complaint as they relate to punitive damages: (1) Page 7, Line 7, Item number 35: For punitive damages; (2) Page 8, Line 4, Item number 43: For punitive damages; and (3) Page 8, Line 13, For punitive damages.
However, a threshold issue raised in the Opposition brief is whether Defendant Thompson has the ability to bring this motion at all. This Court notes that Entry of Default was entered against Defendant Thompson on February 9, 2024. Since then, Defendant Thompson has not moved for a Motion to Set Aside Default. As such, and as noted in Plaintiff’s opposition, she may not “participate” in this case by filing the Motion to Strike. “The entry of default terminates a defendant’s rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered.” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 15 Cal.App.3d 381, 385.) Further, “[a] defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff’s right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.” (Brooks v. Nelson (1928) 95 Cal.App. 144, 147-48.)
Thus, this motion is denied on the grounds that Defendant Thompson currently has default entered against her and has not moved for it to be set aside, rendering her “out of court” until then.
III. CONCLUSION
For the foregoing reasons, Defendant Thompson’s Motion to Strike is DENIED without prejudice, to be brought if and when Defendant Thompson moves for the entry of default against her to be set aside.
Plaintiff is ordered to give notice.