Request for Entry of Default Judgment
Motion is untimely, the Court retains discretion to consider a late-filed motion to strike. (See Code Civ. Proc., Sec. 436 [court may strike pleadings upon motion "or at any time in its discretion"]; CPF Agency Corp. v. R&S Towing (2005) 132 Cal.App.4th 1014, 1020-1021 [court has discretion to consider a late-filed motion to strike].) Irene and Underwood have also not shown any prejudice caused by the delay. (Amacorp Indus. Leasing Co. v. Robert C. Young Assocs., Inc. (1965) 237 Cal.App.2d 724, 730 ["recent California cases upholding a motion to strike for failure to timely file all involve aggravated circumstances," such as "frivolous and sham demurrers" or "a purposely dilatory defendant"].)
The Court therefore exercises its discretion to consider Plaintiff's Motion to Strike. The Answers are not verified and therefore fail to comply with Code of Civil Procedure section 664.6, subdivision (a). (Answer (5/21/26) [Underwood]; Answer (5/27/26) [Irene].) Irene and Underwood do not dispute that their Answers are unverified and therefore noncompliant. (See generally, Opp.; see D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion, "it is assumed that [nonmoving party] concedes" that ground].)
Accordingly, Irene's and Underwood's Answers are subject to being stricken. (Zavala v. Bd. of Trs. (1993) 16 Cal.App.4th 1755, 1761 [proper procedure for attacking unverified pleading is a motion to strike].) Furthermore, Underwood's Answer is a general denial and does not contain a denial of the allegations of the complaint. Based on the foregoing, the Court GRANTS the Motion to strike the answers. Plaintiff also requests attorney's fees and costs incurred in filing this motion. However, Plaintiff does not cite any statutory basis for awarding attorney's fees.
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The Court hereby STRIKES Defendant Underwood Law Firm, P.C.'s Answer to the First Amended Complaint and ORDERS Defendant Underwood Law Firm, P.C. to file a verified code compliant answer within ten calendar days of the Court's order. The Court DENIES Plaintiff's request for attorney's fees and costs. Plaintiff is ordered to give notice of the Court's ruling within five calendar days of this order. [1] The Court refers to Irene by her first name only to avoid confusion. No disrespect is intended.
Axel Gustavo Magana Coss' Request for Entry of Default Judgment Defendants: Brandon Ray Reed and Karina Reed Ballesteros TENTATIVE RULING Plaintiff's request for entry of default judgment is DENIED. The Court will discuss with Plaintiff at the hearing whether Plaintiff intends to amend the Complaint to resolve the pleading defects identified herein. BACKGROUND This is a breach of contract case. February 3, 2026, plaintiff Axel Gustavo Magana Coss (Plaintiff) filed this action against defendants Brandon Ray Reed, Karina Reed Ballesteros (collectively, Defendants), and Does 1 to 10, alleging the sole cause of action for breach of contract. On June 2, 2026, default was entered against Defendants. On June 22, 2026,
Plaintiff requested entry of default judgment against Defendants. LEGAL STANDARD Code of Civil Procedure section 585 permits entry of a default judgment after a party has failed to timely respond or appear. (Code Civ. Proc., Sec. 585.) A party seeking judgment on the default by the court must file a Request for Court Judgment and: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursements; (5) declaration of nonmilitary status; (6) a proposed form of judgment; (7) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment; (8) exhibits as necessary; and (9) a request for attorneys' fees if allowed by statute or by the agreement of the parties. (Cal.
Rules of Court, rule 3.1800, subd. (a).) ANALYSIS Plaintiff seeks default judgment against Defendants in the total amount of $40,433.32, including $40,000.00 in damages and $433.32 in costs. The Court finds some problems with Plaintiff's default judgment request that prevents the Court from entering default judgment against Defendants at this time. First, the Complaint does not allege sufficient facts to support Plaintiff's breach of contract claim. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186 ["To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff. [Citation]"]; see Kim v.
Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 281-282 [default admits only the well pleaded allegations in the complaint and a cause of action cannot stand against the defaulted defendant if it is not properly pleaded].) While the Complaint contains certain background allegations and attaches a copy of the contract, it does not allege all of the facts necessary to support Plaintiff's claim, such as when or how Defendants breached the contract. (See Compl., P.P. 1-10, Ex. A.) Paragraph 8 of the Complaint states that Plaintiff attached a cause of action for breach of contract, but the only thing Plaintiff attached was a copy of the contract. (Compl., P. 8, Ex.
A.) In essence, all the Complaint alleges is that there was a contract between the parties, which is insufficient to state a cause of action for breach of contract. (See Richman v. Hartley, supra, 224 Cal.App.4th at p. 1186.) Also, the fact Plaintiff's declaration submitted in support of the default judgment provides some of these missing facts does not solve the problem with the Complaint. (See generally, Coss Decl.; see Grappo v. McMills (2017) 11 Cal.App.5th 996, 1015 ["If the complaint does not state a cause of action or the allegations do not support a claim for relief, a default judgment is erroneous and 'cannot stand.' [Citation]"].)
The only way Plaintiff can fix these pleading defects is to amend the Complaint and serve the amended pleading on Defendants. Second, Plaintiff provides conflicting cost calculations. Plaintiff's Memorandum of Costs on Form CIV-100 states a total of $431.75, but Plaintiff's damages summary indicates
$433.32. (CIV-100, P. 7; Damages Summary, p. 1.) Also, the $1.56 in postage is not a recoverable cost. (Code Civ. Proc., Sec. 1033.5, subd. (b)(3).) Third, since this appears to be a personal debt, Plaintiff also should have completed paragraph 7 on Form JUD-100. (JUD-100, P. 7.) CONCLUSION Based on the foregoing, Plaintiff's request for entry of default judgment is DENIED. The Court will discuss with Plaintiff at the hearing whether Plaintiff intends to amend the Complaint to resolve the pleading defects identified herein. | Home -->)" -->