RODRIGUEZ CHAVERO vs CLARK

25CV140807: RODRIGUEZ CHAVERO vs CLARK 09/08/2026 Hearing on Motion for Reconsideration filed by Hector Daniel Clark (Defendant) CRS# 379082192772 in Department 518

Tentative Ruling - 09/03/2026 Mark Fickes

The Motion for Reconsideration of Rejection of Request For Entry of Default filed by Hector Daniel Clark on 06/30/2026 is Denied.

BACKGROUND

Defendant and Cross-Complainant Hector Daniel Clark (“Clark”) filed his Cross-Complaint on March 13, 2026, and served it on Plaintiff and Cross Defendant Jose A. Rodriguez Chavero (“Rodriguez Chavero”) by certified mail. On June 15, 2026, Clark submitted a Request for Entry of Default (Judicial Council Form CIV-100) on the Cross-Complaint. The clerk declined to enter default, returning the CIV-100 marked "Default NOT entered as requested" and stating that the proof of service was inadequate and that the Cross-Complaint "must be personally served."

On June 30, 2026, Clark filed the present Motion for Reconsideration, contending that mail service of the Cross-Complaint was effective under Code of Civil Procedure section 428.60 because Rodriguez Chavero had already appeared in the action, and that Rodriguez Chavero's March 26, 2026 ex parte application for an extension of time to respond to the Cross-Complaint is "new evidence" proving Rodriguez Chavero received the Cross-Complaint and knew a response was required. Clark asks the Court to find mail service effective and to enter default. Rodriguez Chavero opposes. In the interim, Rodriguez Chavero filed his Answer to the Cross- Complaint, which was entered on the Court's docket on July 14, 2026.

LEGAL STANDARD

A party's motion for reconsideration is governed by Code of Civil Procedure section 1008. It must be made within 10 days after service of written notice of the order, must be "based upon new or different facts, circumstances, or law," and must be supported by an affidavit stating the prior order and "what new or different facts, circumstances, or law are claimed to be shown." (Code Civ. Proc., § 1008, subd. (a).) Section 1008 "specifies the court's jurisdiction" over reconsideration and provides that "[n]o application to reconsider any order ... may be considered by any judge or court unless made according to this section." (Id., subd. (e).) The statute prohibits a party "from making renewed motions not based on new facts or law." (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096.)

Entry of default is a ministerial act. A default "may be had, if the defendant fails to answer." (Code Civ. Proc., § 585.) On a cross-complaint, a default may be entered against a crossdefendant only if that party "has been served ... and has failed to file an answer" within the time allowed. (Id., subd. (e).) A responsive pleading on file when default is requested precludes entry of default: "an untimely pleading is not a nullity, and it will serve to preclude the taking of default proceedings unless it is stricken." (A & B Metal Products v.

MacArthur Properties, Inc. 25CV140807: RODRIGUEZ CHAVERO vs CLARK 09/08/2026 Hearing on Motion for Reconsideration filed by Hector Daniel Clark (Defendant) CRS# 379082192772 in Department 518 (1970) 11 Cal.App.3d 642, 647.) Where a pleading is filed before default is taken, the party "is not strictly in default," and the proper course is for the opposing party "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.)

DISCUSSION

The motion fails for independent reasons, none of which requires the Court to decide whether mail service of the Cross-Complaint was effective.

A. The Motion Does Not Satisfy Section 1008

Reconsideration under section 1008 lies from an "order" of a judge or court. The clerk's refusal to enter default is a ministerial act, not a judicial order; the clerk "has no authority whatever to determine the sufficiency, either as to the substance or form, of a pleading on file" (Goddard, supra, 37 Cal.App.3d at p. 143), and the clerk's function is confined to determining whether proof of service exists and whether an answer has been filed (Bristol Convalescent Hospital v. Stone (1968) 258 Cal.App.2d 848, 862). Section 1008 is an ill-suited vehicle for revisiting that ministerial act.

In any event, the motion does not satisfy section 1008 on its own terms. A party's motion for reconsideration must rest on "new or different facts, circumstances, or law." (Code Civ. Proc., § 1008, subd. (a); Le Francois, supra, 35 Cal.4th at p. 1096.) The only "new evidence" Clark offers is Rodriguez Chavero's ex parte application filed March 26, 2026. That document was in the court file months before Clark's June 15, 2026 default request and is not new. The motion therefore presents no new facts, circumstances, or law, and Clark offers no explanation for failing to present this material earlier.

B. An Answer Is on File, and No Default May Be Entered

Even if the Court were to reconsider the rejection and agree that mail service was proper, it could not grant the relief Clark seeks. A default may be entered on a cross-complaint only where the cross-defendant "has failed to file an answer." (Code Civ. Proc., § 585, subd. (e).) Rodriguez Chavero's Answer to the Cross-Complaint was entered on the docket on July 14, 2026, before any default was entered. A responsive pleading on file "will serve to preclude the taking of default proceedings unless it is stricken," and a party who has filed such a pleading "is not strictly in default." (A & B Metal Products, supra, 11 Cal.App.3d at p. 647; Goddard, supra, 37 Cal.App.3d at p. 141.) The Court has not stricken the Answer, and Clark has not moved to strike it. With the Answer on file, entry of default is unavailable, and the motion is moot as to the relief requested.

C. The Service Question Does Not Change the Result

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV140807: RODRIGUEZ CHAVERO vs CLARK 09/08/2026 Hearing on Motion for Reconsideration filed by Hector Daniel Clark (Defendant) CRS# 379082192772 in Department 518 The Court need not, and does not, decide whether mail service of the Cross-Complaint on Rodriguez Chavero was effective under Code of Civil Procedure section 428.60, which authorizes service of a cross-complaint on a party who has appeared by the methods used for a notice or written motion. Even assuming Clark is correct that mail service sufficed, that would establish only that the clerk could have entered default on June 15, 2026 had no responsive pleading then been due and on file. It would not permit entry of default now, because the Answer is on file. The proper course, if Clark contends the Answer is untimely or otherwise defective, is a motion to strike, not reconsideration. (Goddard, supra, 37 Cal.App.3d at p. 141.)

CONCLUSION

The motion does not satisfy Code of Civil Procedure section 1008, and in any event no default may be entered because Rodriguez Chavero's Answer to the Cross-Complaint is on file. Accordingly, the court orders as follows:

1. Defendant/Cross-Complainant's Motion for Reconsideration of Rejection of Request for Entry of Default is DENIED.

2. The Court does not decide whether service of the Cross-Complaint by mail was effective, and this Order is without prejudice to any properly noticed motion addressed to the Answer, including a motion to strike.

CASE MANAGEMENT AND FURTHER PROCEEDINGS

The Court makes the following observations and directions, which apply to all further proceedings in this matter. This case has been marked by motion practice disproportionate to the issues and the amount in controversy, including the several motions the Court has now resolved and motions previously denied. The Court finds that the litigation has become over-litigated and unduly burdensome, and that more meaningful, good-faith meet-and-confer efforts would likely reduce the motion practice going forward. Now that both parties are represented by counsel, the Court expects counsel and the parties to act reasonably, to cooperate in the discovery process, and to resolve disputes without court intervention wherever possible.

To that end, the Court orders as follows:

1. All further meet-and-confer efforts required by statute or rule shall be conducted by video conference (for example, Zoom or a similar platform) and shall be recorded. The Court will not consider any motion for which a meet-and-confer effort is a prerequisite unless the moving papers are accompanied by a declaration attesting to that effort.

2. For any further motion for which meet-and-confer is required, if a party contests the Court's tentative ruling, both counsel and the parties themselves shall appear in person, and not remotely, at the hearing on that motion. They shall also bring a copy of the meet-and-confer

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV140807: RODRIGUEZ CHAVERO vs CLARK 09/08/2026 Hearing on Motion for Reconsideration filed by Hector Daniel Clark (Defendant) CRS# 379082192772 in Department 518 efforts.

PLEASE NOTE: Pursuant to California Rule of Court 3.1308, subdivision (a)(1), this tentative ruling will become the order of the Court unless it is contested before 4:00 PM on the court day preceding the noticed hearing.

To contest a tentative ruling, a party should do the following:

First, the party must notify Department 518, by email at Dept518@alameda.courts.ca.gov and copy all counsel of record and self-represented parties. The contesting party must state in the subject line of the email the case name, case number and motion.

Second, the party shall log into the eCourt Public Portal, search for this case (e.g., by case number), select the case name, select the "Tentative Rulings" tab, click the "Click to Contest this Ruling" button, enter the party's name and a brief statement of the party's reason for contesting the tentative, and click "Proceed."

Please note the Court does not permit remote appearances for motions for summary judgment that are contested. If you contest a Motion for Summary Judgment, you must appear in person.

For all other motions (unless otherwise noted in the tentative ruling), Parties may appear via videoconference, using the Zoom.com website or application. TO CONNECT TO ZOOM: Department 518 is inviting you to a scheduled ZoomGov meeting.

Topic: Department 518's Personal Meeting Room

Join ZoomGov Meeting https://alameda-courts-ca-gov.zoomgov.com/j/16054307984

Meeting ID: 160 5430 7984

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SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV140807: RODRIGUEZ CHAVERO vs CLARK 09/08/2026 Hearing on Motion for Reconsideration filed by Hector Daniel Clark (Defendant) CRS# 379082192772 in Department 518