Case Name: Pavel Pogodin v. Rebello’s Towing Services, Inc.
Case No.: 17-CV-306437

Currently before the Court is the motion by plaintiff Pavel Pogodin (“Plaintiff”) to strike the answer of Rebello’s Towing Services, Inc. (“Defendant”) and enter default against Defendant.

Factual and Procedural Background

This is an action for negligence, alleging that Defendant damaged Plaintiff’s car while performing towing and storage services. Plaintiff filed his complaint against Defendant on February 15, 2017. Two days later, Plaintiff filed a proof of service of summons (“POSS”), stating that the summons and complaint was served on Defendant via substituted service on February 16, 2017.

In the early hours of March 27, 2017, Defendant’s counsel emailed Plaintiff advising that he had been retained by Defendant and requesting an extension of time to file and serve Defendant’s answer to the complaint. Plaintiff did not respond to the email.

Instead, Plaintiff filed a request for entry of default against Defendant the following day. In the request, Plaintiff did not indicate whether he was requesting entry of a court judgment or a clerk’s judgment. In addition, Plaintiff did not state the amount of the judgment to be entered or provide a declaration pursuant to Code of Civil Procedure section 585.5, subdivision (a). Finally, Plaintiff indicated that he mailed the request to Defendant’s counsel. The court clerk refused to enter default as requested on the grounds that the request was premature and Plaintiff did not provide a declaration pursuant to Code of Civil Procedure section 585.5, subdivision (a).

Plaintiff filed a second request for entry of default against Defendant on June 2, 2017. The second request was identical to Plaintiff’s first request. The court clerk refused to enter default as requested on the grounds that Plaintiff did not provide a declaration pursuant to Code of Civil Procedure section 585.5, subdivision (a) and the name of the person served with the request for entry of default was a person other than Defendant.

Thereafter, Defendant filed a motion to set aside default on November 8, 2017. The hearing on the motion was set for January 9, 2018. Plaintiff filed papers in opposition to the motion on December 26, 2017.

On January 2, 2018, Defendant filed a notice of withdrawal of its motion to set aside default and its answer to the complaint.

Subsequently, on January 19, 2018, Plaintiff filed the instant motion to strike Defendant’s answer and enter default against Defendant. Defendant filed papers in opposition to the motion on May 2, 2018. On May 8, 2018, Plaintiff filed a reply.

Discussion

Plaintiff argues that the Court should strike Defendant’s answer to the complaint because Defendant failed to file its answer within the time allowed under Code of Civil Procedure section 412.20. Plaintiff further argues that the Court should direct the court clerk to enter default against Defendant because his request for entry of default was timely filed and served, processing of his request was delayed due to budgetary cuts, and default was not entered due to “technical reasons” that should be overlooked.

When a defendant has not filed an answer within the time required in the summons or by court order, the proper procedure is for the plaintiff to move to strike the defendant’s untimely pleading and, if the court grants such relief, thereafter proceed to obtain the entry of the defendant’s default. (Goddard v. Pollock (1974) 37 Cal.App.3d 137, 141 (Goddard); Rose v. Lelande (1912) 20 Cal.App. 502.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).) A motion to strike may be brought on the ground that a pleading is “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., §§ 435 and 436, subd. (b).) As a general matter, unless extended by stipulation or court order, a defendant’s answer to a complaint is due within 30 days after service of the complaint. (Code Civ. Proc., § 412.20, subd. (a)(3).)

Here, the POSS filed with the court states that the summons and complaint was served on Defendant on February 16, 2017. Consequently, Defendant had 30 days from that date to file its answer to the complaint. It is undisputed that Defendant did not file its answer within the 30-day time period.

However, “a defendant may file an answer, even after the time to answer has expired, unless a default has previously been entered.” (Brown v. Ridgeway (1983) 149 Cal.App.3d 732, 736.) “[I]t is now well established by the case law that where a pleading is belatedly filed, but at a time when a default has not yet been taken, the plaintiff has, in effect, granted the defendant additional time within which to plead and he is not strictly in default.” (Goddard, supra, 37 Cal.App.3d at p. 141.) Currently, no default has been entered in this matter.

Moreover, even though Plaintiff previously filed requests for entry of default, those requests were deficient such that Plaintiff was not entitled to entry of default. Specifically, Plaintiff failed to indicate in his requests whether he was requesting entry of a court judgment or a clerk’s judgment. Furthermore, Plaintiff did not state the amount of the judgment to be entered or provide a declaration pursuant to Code of Civil Procedure section 585.5, subdivision (a). Because Plaintiff’s requests for entry of default were incomplete, he was not entitled to entry of default against Defendant.

Under these circumstances, Plaintiff has no absolute right to have the answer stricken. (See Cuddahy v. Gragg (1920) 46 Cal.App. 578, 580 (Cuddahy) [a “plaintiff has no absolute right to have the pleading stricken from the files merely because it was not filed in time”].) Similarly, Defendant has no absolute right to have its late-filed answer remain in the case file. (See ibid. [a “defendant has no absolute right to have his belated pleadings remain in the files; for a defendant cannot, as of right, answer or demur after the expiration of the time proscribed by the statute”].) Rather, it is in the Court’s discretion whether to grant Plaintiff’s motion to strike the untimely answer. (See ibid.)

In this case, the Court finds that the appropriate course of action is to retain the answer. (See Cuddahy, supra, 46 Cal.App. at p. 580; see also Bowers v. Dickerson (1861) 18 Cal. 420, 421 [where an answer is untimely filed and before default the trial court has “absolute power either to retain the answer or to permit another to be filed, or to pursue whatever course in that respect the justice of the case required”]; A & B Metal Products v. MacArthur Properties, Inc. (1970) 11 Cal.App.3d 642, 649 [“[i]t is the policy of the law to favor, wherever possible, a hearing on the merits”].)

The record shows that counsel diligently attempted to file Defendant’s answer after he was hired. Defendant’s counsel contacted Plaintiff after he was retained to request an extension of time to file an answer and, thereafter, he personally attempted to file Defendant’s answer. (Kalra Dec., ¶¶ 1-3.) However, he was told by the court clerk that the answer would not be accepted because a “default was pending.” (Id., at ¶ 3.) Counsel continued to monitor the docket for several weeks. (Ibid.) When he contacted the court clerk again regarding the status of the default, he received inconsistent information about whether the default was entered. (Id., at ¶ 4.) Consequently, in November 2017, he filed a motion to set aside the default, which was set for hearing in January 2018. (Ibid.) Counsel later received a call from the court clerk advising him that default had not been entered. (Id., at ¶ 5.) He therefore withdrew the motion and filed Defendant’s answer. (Ibid.) This record demonstrates that counsel was reasonably diligent in filing Defendant’s answer.

In addition, Plaintiff has not argued or presented evidence demonstrating that the late filing of the answer prejudiced him. Moreover, the record demonstrates that Plaintiff—a self-represented attorney—had notice of Defendant’s counsel’s retention and his intent to file an answer on Defendant’s behalf. Instead of granting Defendant an extension of time to respond to the complaint, Plaintiff immediately requested entry of default against Defendant. This practice cannot be condoned by the Court.

Furthermore, Plaintiff’s motion to strike is also untimely. A motion to strike an answer must be filed within 10 days after service of the answer. (Code Civ. Proc., §§ 430.40. subd. (b), 435, subd. (b).) Service by mail extends the time to file a motion to strike by five days. (See Code Civ. Proc., § 1013.) As Defendant’s answer was served by mail on January 2, 2018, Plaintiff’s deadline to file a motion to strike was January 17, 2018. Plaintiff’s motion to strike is untimely as it was not filed until January 19, 2018.

For the foregoing reasons, Plaintiff’s motion to strike the answer and enter default against Defendant is DENIED.

Case Status Review hearing on 11/8/18 at 10 a.m. is VACATED. Trial Setting Conference is set on July 24, 2018 at 11 a.m. in Department 6.