Case Number: BC698056 Hearing Date: October 01, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEMURRER TO COMPLAINT; DEMURRER STRICKEN

On March 13, 2018, plaintiffs Charles Faulkner (“Faulkner”), Kateri Forbes (“Forbes”) and Jason Wong (“Wong”) (collectively “Plaintiffs”) filed a complaint against defendant Brian Ahn (“Ahn”) and Does 1 to 10 alleging a single cause of action for negligence arising from a vehicle versus vehicle collision. The complaint includes a prayer for punitive damages.

Plaintiffs filed a proof of service of summons with the Court on May 29, 2018, indicating that Ahn was served with the complaint and summons by substituted service on May 12, 2018. On July 20, 2018, Plaintiffs requested entry of default against Ahn, which was entered as requested.

On August 16, 2018, Ahn filed the instant demurrer and motion to strike. On August 17, 2018, Plaintiffs filed oppositions.

The entry of a 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) 155 Cal.App.3d 381, 385.) 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. (Id. at 385–386.) Moreover, entry of default deprives the court of jurisdiction to consider any motion other than a motion for relief from default. (See W.A. Rose Co. v. Municipal Court (1959) 176 Cal.App.2d 67, 71-72.)

Here, on July 20, 2018, a default was entered against Ahn. Instead of filing a motion to vacate/set aside the default, Ahn improperly filed the instant demurrer and motion to strike without first vacating/setting aside the default entered on July 20, 2018. The Court therefore strikes Ahn’s improperly filed demurrer and motion to strike on its own motion. (CCP §§ 435, 436(b).) Ahn may not file another responsive pleading unless and until Ahn’s default is vacated or set aside.

Parties who intend to submit on this tentative must send an email to the Court at sscdept7@lacourt.org as directed by the instructions provided on the Court website at www.lacourt.org.

Moving Party is ordered to give notice.