2018-00241608-CU-MC

Earl Boyce vs. Faron Carroll

Nature of Proceeding: Motion to Set Aside Default and Default Judgment

Filed By: Carroll, Faron

The default entered on 1/9/2019 is, on the Court’s own motion VACATED AS VOID.

Defendant’s motion to set aside is dropped as moot.

On 11/27/2018, Defendant Faron Carrol, filed a demurrer to the complaint for a hearing on 12/11/2018. In the Court’s ruling 12/11/2018 ruling on the demurrer, the Court dropped the demurrer for insufficient service. On 1/9/2019, Plaintiff filed a request for entry of default which was granted.

Pursuant to CCP 585(a), “[i]n an action arising upon contract or judgment for the recovery of money or damages only, if the defendant has, or if more than one defendant, if any of the defendants have, been served, other than by publication, and no answer, demurrer . . . has been filed with the clerk of the court within the time specified in the summons, or within further time as may be allowed, the clerk, upon written application of the plaintiff, shall enter the default of the defendant.”

The filing of a demurrer constitutes a general appearance. (Borsuk v. Appellate Division of Superior Court (2015) 242 Cal.App.4th 607, 615.) “The clerk is not authorized to enter a default for failure to file an answer [or demurrer] when such answer [or demurrer] is on file at the time such default is attempted to be entered. . . .

In such a case the court may set aside the judgment of its own motion at any time . . . .” (Reher v. Reed (1913) 166 Cal. 525, 528, 137 P. 263.) “If the clerk enters such a judgment without such authority the judgment is void. . . . Such a judgment may be vacated upon motion or may be set aside by the court on its own motion.” ( Montgomery v. Norman (1953) 120 Cal.App.2d 855, 858; see Bae v. T.D. Service Company (2016) 245 Cal.App.4th 89, 99, fn. 7, [“[w]hen a clerk manifestly acts beyond his or her statutorily-conferred powers in entering a default, that action is void, as is any default judgment predicated on it”].)

Since the clerk entered default after Defendant had filed a demurrer, the clerk had no authority to enter default and the default is void. (See Barragan v. Banco BCH (1986) 188 Cal.App.3d 283, 297 [where the defendant files a demurrer, the “plaintiff may not obtain entry of default by action of the clerk”]; Stevens v. Torregano (1961) 192 Cal.App.2d 105, 112, 13 Cal. Rptr. 604 [default entered after the defendant had filed a demurrer was void].) Because the default was void, the Court has the authority to vacate it on its own motion.

To the extent Defendant’s demurrer was untimely, Plaintiff could have, but did not, move to strike the demurrer. (See Barragan v. Banco BCH (1986) 188 Cal.App.3d 283, 297.)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

Item 13 2018-00241608-CU-MC

Earl Boyce vs. Faron Carroll

Nature of Proceeding: Hearing on Demurrer to the Complaint

Filed By: Carroll, Faron

The demurrer is DROPPED for defective service. Although Defendant’s proof of service indicates that the demurrer was mail served on 1/28/2019, Plaintiff proffers evidence that the demurrer was actually served via mail on 2/6/2019. Plaintiff submits the envelope in which the demurrer papers were served. The USPS stamp on the envelope, however, is dated 2/6/2019.

Mail service on 2/6/2019 allowed for only 16 court days with no additional calendar days for mail. February 18th and 12th were court holidays.

Defective service of notice which deprives the court of

jurisdiction to consider it. (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509-511.)