Raymond Davey v. Close Associates et al

3. CU0002312 Raymond Davey v. Close Associates et al

The Court grants the motion of Defendants Close Associates and Craig Close to set aside Plaintiff’s March 16, 2026, Amended Request for Entry of Default and Default retroactively entered on January 8, 2026.

The default was improvidently and incorrectly entered by the clerk. Firstly, a “[p]laintiff must file an affidavit with the court stating that a copy of the application for entry of default has been mailed to defendant or his attorney.” Ely v. Gray (1990) 224 Cal.App.3d 1257, 1260, citing Code Civ. Proc. § 587. Code of Civil Procedure section 587 states:

An application by a plaintiff for entry of default under subdivision (a), (b), or (c) of Section 585 or Section 586 shall include an affidavit stating that a copy of the application has been mailed to the defendant’s attorney of record or, if none, to the defendant at his or her last known address and the date on which the copy was mailed. If no such address of the defendant is known to the plaintiff or plaintiff’s attorney, the affidavit shall state that fact.

No default under subdivision (a), (b), or (c) of Section 585 or Section 586 shall be entered, unless the affidavit is filed. The nonreceipt of the notice shall not invalidate or constitute ground for setting aside any judgment. (Italics supplied).

Here, Plaintiff did not submit an affidavit which, as required, indicated the date on which a copy of the application had been mailed to defendant at his last known address. See 3/16/26 Amended Request for Default.

Secondly, Plaintiff failed to properly date his requests for entry of default as required. See Code Civ. Proc § 2015.5.

Thirdly, on March 16, 2026, the clerk had no lawful authority to enter a default as requested because Defendant had already filed a declaration pursuant to Code of Civil Procedure section 430.41 on March 3, 2026. See Code Civ. Proc. § 430.41(a)(2) (“The 30-day [“automatic”] extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension.”). Whether or not the automatic extension was legally applicable under the circumstances of this case, the clerk had no authority to disregard the declaration; only the Court had authority to pass judgment as to its validity.

Lastly, the clerk had no lawful authority to retroactively enter the default requested on March 16, 2026 as of January 2026. See Jonson v. Weinstein (1967) 249 Cal.App.2d 954, 959 (“the actual date of [physical] default entry governs.”).

In short, the clerk erred in entering the default. Accordingly, it is set aside as to both Defendants. See Code Civil Proc. § 473(d).

In addition, or the alternative, Defendants have demonstrated to the satisfaction of the Court, based on the record presented, that they failed to timely file a responsive pleading as a result of mistake, inadvertence and excusable neglect. See Code Civ. Proc. § 473(b). The default is set aside on this ground as well.

A responsive pleading shall be served and filed within ten calendar days.

4. CU0001696 George Watson vs. General Motors, LLC

Defendant General Motors LLC’s demurrer to the fifth cause of action of Plaintiff’s Third Amended Complaint (“TAC”), to which Plaintiff has filed a written statement of non-opposition, is sustained without leave to amend.

Defendant’s motion to strike the prayer for punitive damages in the TAC is granted without leave to amend. Plaintiff has filed no opposition to the motion; as such, the Court deems Plaintiff’s failure to oppose the motion as consent to the granting of the same. See Cal. Rules of Court, rule 8.54(c) (“failure to oppose a motion may be deemed a consent to the granting of the motion.”); see, e.g., Amato v. Downs (2022) 78 Cal.App.5th 435, 440, n.3 (unopposed motion can be granted on that basis, citing rule 8.54(c)).

5. CL0004294 Federal National Mortgage Association vs. Named Defendant

The parties shall appear for argument.

6. CL0003982 Robert Mueller vs. Named Defendant, et al.

The parties shall appear for argument.

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