Judge: Walter P. Schwarm, Case: 30-2019-01094984, Date: 2022-08-30 Tentative Ruling

Plaintiff’s (Alex Baah) unopposed Motion for the Court to Enter Default and Default Judgment (Motion), filed 6-21-22 under ROA No. 124, is DENIED.

Plaintiff requests entry of default, default judgment in the amount of $5,000,000 and an award of costs against Defendant, First DC Investment, LLC for failure to appear at trial on 4-29-22. (Motion, 12-13.)

On 1-28-22, Defendant (First DC Investments LLC) filed its answer to the FAC under ROA No. 76. As the Motion admits, Defendant previously appeared at the 9-3-21 hearing on Plaintiff’s Request for Trial Continuance. (Motion, 12-13.)

Code of Civil Procedure section 594, subdivision (a) states, “In superior courts either party may bring an issue to trial or to a hearing, and, in the absence of the adverse party, unless the court, for good cause, otherwise directs, may proceed with the case and take a dismissal of the action, or a verdict, or judgment, as the case may require; provided, however, if the issue to be tried is an issue of fact, proof shall first be made to the satisfaction of the court that the adverse party has had 15 days' notice of such trial or five days' notice of the trial in an unlawful detainer action as specified in subdivision (b). If the adverse party has served notice of trial upon the party seeking the dismissal, verdict, or judgment at least five days prior to the trial, the adverse party shall be deemed to have had notice.”

Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 863 (Heidary), states, “The Wilson court affirmed the order vacating the judgment, and because its opinion explains the governing law quite clearly, we will quote it at some length: ‘Section 585 of the Code of Civil Procedure does not authorize the entry of any default in cases where an answer is on file, whether the defendant does or does not appear at the time the action is called for hearing. (Warden v. Lamb, 98 Cal.App. 738, 741 [277 P. 867]; Code Civ. Proc., § 585; Barbaria v. Independent Elevator Co., 133 Cal.App.2d 657, 659 [285 P.2d 91].) Where the defendant who has answered fails to appear for trial “the plaintiff's sole remedy is to move the court to proceed with the trial and introduce whatever testimony there may be to sustain the plaintiff's cause of action.” (Warden v. Lamb, supra, p. 741.) In such case a plaintiff is entitled to proceed under the provisions of Code of Civil Procedure, section 594, subdivision 1, and he may do so in the absence of the defendant provided the defendant has been given at least five days notice of the trial.  Section 594 does not authorize the entry of the default in the event the defendant fails to appear, and a hearing held pursuant to that section under such circumstances is uncontested as distinguished from a default hearing. (See Ahmanson Bank & Trust Co. v. Tepper, 269 Cal.App.2d 333, 340 [74 Cal.Rptr. 774]; Code Civ. Proc., §§ 485, 494; Warden v. Lamb, supra, 98 Cal.App. 738, 741.) . . . .’ ” (Footnotes 4 and 5 omitted; Italics in Heidary.)

Given that Defendant has answered the FAC, the court does not have the authority to enter default against Defendant.  Therefore, the court DENIES Plaintiff’s (Alex Baah) unopposed Motion for the Court to Enter Default and Default Judgment filed 6-21-22 under ROA No. 124.

The court request Plaintiff to appear at the hearing on 8-30-22 to reset the trial date.

Court Clerk is to give notice.