Case Name: Subramonya Ayyar, et al. v. Kannan Ayyar, et al.
Case No.: 2015-1-CV-284138

I. Background

This action arises out of a dispute among siblings over the management of their elderly parents’ care and assets. The parents, plaintiffs Subramonya Ayyar and Bavani Ayyar, filed the underlying complaint by and through their children and guardians ad litem Balan Ayyar and Priya Ayyar. The complaint alleges that their other children, defendants Kannan Ayyar and Rajan Ayyar, exerted undue influence over them and converted their assets for their own personal benefit.

On April 10, 2015, the Court (in Los Angeles where the case was originally filed) appointed Priya Ayyar as the guardian ad litem for Bavani Ayyar, and Balan Ayyar as the guardian ad litem for Subramonya Ayyar.

Kannan Ayyar (“Cross-Complainant”), who is self-represented, filed a cross-complaint against Balan Ayyar and Priya Ayyar (“Cross-Defendants”) alleging that they engaged in financial elder abuse and their decision to take over the management of their elderly parents’ care and assets was involuntary and against their parents’ will.

Cross-Defendants previously demurred to and moved to strike the cross-complaint. The Court issued an order overruling the demurrer and denying the motion to strike. The day after the answer was due and Cross-Defendants had not yet filed their answer, Cross-Complainant filed a request for entry of default, which has not yet been processed by the clerk’s office. A week after the answer was due, Cross-Defendants filed their answer to the cross-complaint. Cross-Complainant now moves to strike their answer.

II. Motion to Strike the Answer

Cross-Complainant moves to strike Cross-Defendants’ answer to the cross-complaint on the ground that it was filed after the expiration of the time prescribed by statute.

When a court overrules a demurrer to a cross-complaint, a party has 10 days from service of the notice of ruling to answer. (See Code Civ. Proc., § 472b; Cal. Rules of Court, rule 3.1320(j)(1).) The party prevailing on the demurrer is responsible for serving a notice of ruling unless the Court orders otherwise. (Code Civ. Proc., § 1019.5, subd. (a).) For example, the Court might order the clerk to serve such notice. In that instance, to constitute notice within the meaning of the statute to commence the 10 day timeframe to answer the cross-complaint, the clerk need only serve a copy of the Court’s order. (See Parris v. Cave (1985) 174 Cal.App.3d 292, 294 [service of file-stamped copy sufficient]; see also Robbins v. L.A. Unified School Dist. (1992) 3 Cal.App.4th 313, 318 [service of minute order sufficient].)

The record reflects that at the hearing on January 28, 2016, the Court took the matter under submission and did not issue a final ruling. (See Minute Order dated Jan. 28, 2016.) On February 22, 2016, the clerk served the parties with the Court’s order overruling Cross-Defendants’ demurrer and denying their motion to strike the cross-complaint. (See Proof of Service filed Feb. 22, 2016.) Cross-defendants concede that their time to answer thus ran from February 22. (Weisberg Decl., ¶ 5.) Accordingly, they had until March 8 to answer the cross-complaint. They did not file their answer to the cross-complaint until March 15, 2016, and concede that their answer was untimely.

A court may strike a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc, § 436, subd. (b).) “This provision is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court.” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.) Even so, “the [cross-complainant] has no absolute right to have the [answer] stricken from the files merely because it was not filed in time; and, on the other hand, the [cross-defendant] has no absolute right to have his belated [answer] remain in the files; for a [cross-defendant] cannot, as of right, answer or demur after the expiration of the time prescribed by statute.” (Cuddahy v. Gragg (1920) 46 Cal.App. 578, 580.) “It is a proper practice, therefore, for the [cross-complainant] to move to strike the [answer] from the files” when the answer to the cross-complaint was untimely. (Ibid.)

The circumstances of this case present the peculiar problem posed when a party untimely files a responsive pleading after a request for entry of default has been filed, but before the clerk has actually entered default due to understaffing and the resulting backlog of requests. As Cross-Defendants argue in their opposition, it is well established that the clerk cannot enter default against a party if an answer is on file at the time of the entry of default, even if the answer was untimely. (Ibid.; see also Code Civ. Proc, § 585.) Nonetheless, an entry of default would ordinarily be effective as of the date the request for entry of default is filed. (Goddard v. Pollock (1974) 37 Cal.App.3d 137, 141.)

Here, the Court declines to exercise its discretion to strike Cross-Defendants’ untimely answer. Under the facts presented here, where the answer was filed just a week after it was due, and the Cross-Complainant filed the request to enter default just one day after the deadline to file the answer, the Court would in all likelihood grant a motion to set aside the default. In a court setting, where counsel for the other side is known, courtesy demands that the Cross-Complainant notify counsel before taking a default (see SCCBA Code of Professionalism, section 15) . Seeking entry of default just a day after the answer is due without prior notice suggests an intent to delay the case or harass opposing parties, gamesmanship that the Court will not condone. Forcing the Cross-defendants to file a motion to set aside a request to enter default would unnecessarily burden the parties, counsel, the Court, and Court staff.

Accordingly, the motion to strike the Cross-defendants’ answer to the Cross-complaint is DENIED.

The Court hereby instructs the Clerk’s Office to deny entry of default based on this order.

III. Motion to Vacate Orders Appointing Guardians ad Litem

Defendants Kannan Ayyar and Rajan Ayyar seek to vacate the orders appointing guardians ad litem, alleging extrinsic fraud.
With the opposing papers, Plaintiffs filed “objections to evidence” submitted in support of the motion to vacate. There is no legal basis for the Court to rule on evidentiary objections filed in connection with a motion other than a motion for summary judgment or an anti-SLAPP motion. The Court therefore declines to rule on Plaintiff’s objections.

The motion to vacate the appointments is DENIED. The issue of who is authorized to act on behalf of Bavani and Subramonya depends on resolution of disputed facts that are central to this case, and that must be resolved at trial. The Court will not decide this type of factual issue on the law and motion calendar.

The Court will prepare the order.