Case Number: BC551942 Hearing Date: June 06, 2018 Dept: 7

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO SET ASIDE VOID ORDER; MOTION GRANTED

On July 18, 2014, Plaintiff Hada Ramirez (“Plaintiff”) filed this action against Defendant Iguana’s Bar & Night Club (“Night Club”) for alleged damages arising out of a February 16, 2014 slip and fall. On April 7, 2016, default was entered against Night Club. On November 11, 2016, the Court entered judgment against Defendant.

On June 20, 2017, Plaintiff filed a motion for leave to amend the complaint, seeking to add Nancy Guzman (“Guzman”) as a defendant. The hearing on Plaintiff’s motion was set for August 7, 2017 and the Court’s tentative ruling was that Plaintiff could amend her complaint as of right (Code of Civ. Proc., § 472). (Declaration of Grace Lea Chang, ¶ 7.) Plaintiff’s counsel submitted on the court’s tentative and on August 4, 2017, filed a First Amended Complaint (“FAC”) adding Guzman as a defendant. (Chang Decl., ¶ 11.) However, on August 7, 2017 when the case was called for hearing, the Court noted that Plaintiff’s counsel needed to file a motion to set aside the default judgment entered on November 11, 2016 against Night Club. The minute order notes that the court clerk gave telephonic notice to Plaintiff’s counsel.

On August 30, 2017, the FAC was personally served on Night Club and Guzman. No defendants filed an Answer. On November 6, 2017, default was entered against “Iguana’s Bar & Night Club, a business of unknown type; Nancy Guzman, an individual; Nancy Guzman dba Iguana’s Bar & Night Club; Nancy Guzman dba Iguana’s Bar.” On April 19, 2018, the Court denied Plaintiff’s application for default judgment on grounds Plaintiff had not moved to set aside the November 11, 2016 judgment against Night Club and the Court struck Plaintiff’s FAC as being not drawn or filed in conformity with California law.

Plaintiff now moves to set aside the April 19, 2018 Order striking the FAC on grounds she could amend her FAC as of right, since no defendant had answered or filed a demur or motion to strike. (Code of Civ. Proc., § 472.)

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code of Civ. Proc., § 473, subd. (d).)

The Court agrees the FAC was erroneously stricken. Plaintiff was entitled to amend the Complaint without leave of the court, as no defendants had answered or filed a demur or motion to strike. The Motion to set aside the Court’s April 19, 2018 Order striking the FAC is GRANTED. Plaintiff’s August 4, 2017 FAC is reinstated as the operative pleading.

The FAC was properly served on defendants and default was entered. However, default judgment will not be entered until Plaintiff moves to set aside the November 11, 2016 judgment against Night Club, as entering a second judgment against Night Club would result in inconsistent judgments and potential duplicate recovery. Only one judgment in a case can be entered.