Cohen, Micah v. Cohen, Philip Alexander

CCP 430.41 pertains to the mandate a party intending to demurrer to a complaint meet and confer in advance of filing a demurrer. Although entitled “Declaration...Pursuant to CCP 430.41”, the declaration itself asserts it seeks to obtain a “thirty (30) day extension of time to file a responsive pleading, pursuant to California Coe of Civil Procedure section 430.41, subd. (a)(2).” See, Declaration, Pg. 2, ll. 10-12 (emphasis added), yet nowhere in the declaration does it indicate Defendant intends to file a demurrer, motion to strike or motion for judgment on the pleadings.

Accordingly, the default was entered appropriately as CCP 430.41 does not afford an extension for any type of responsive pleading, and counsel’s declaration was broader than the code section contemplates. The Court notes, despite Plaintiff’s assertion Defendant filed a “CIV-141”, this optional judicial council form was not utilized by counsel for Defendant which, had it been, could have prevented entry of default. Moreover, the filing of a declaration cannot be interpreted as the Court’s acceptance of the assertions contained therein or agreement with same.

The Court has no ability to reject the filing of such a declaration, yet such in no way equates with agreement with its contents or assertions.

Nevertheless, it appears from the pleadings, the default entered here was due to counsel’s mistake. Such is attested to by counsel (despite the fact counsel may not have completely understood the reasoning for entry of default until now), the request has been filed within six months from entry of default, and the proposed responsive pleading has been included as an exhibit to counsel’s declaration.

Accordingly, the Motion to Set Aside is hereby GRANTED. The default entered on March 18, 2026 is hereby vacated.

In relation to the mandate the Court award Plaintiffs reasonable costs and fees, the Court finds reasonable costs and fees incurred by Plaintiffs to be the total sum of $2,000.00. Said amount shall be paid to Plaintiffs within ten (10) days of notice of entry of this order.

12. FL0000421 Cohen, Micah v. Cohen, Philip Alexander

Parties ordered to appear to show cause as to why they should not each be sanctioned $250.00 for failing to file a partial Judgment including termination of status as ordered on April 25, 2025.

20