Smith v. FPI Management, Inc. CA3

Filed 2/10/21 Smith v. FPI Management, Inc. CA3

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

PATRICIA SMITH et al., C090154

Plaintiffs and Appellants, (Super. Ct. No. 34-2018- 00228279-CU-BC-GDS) v.

FPI MANAGEMENT, INC., et al.,

Defendants and Respondents.

Appellants, Patricia Smith and Glenn Deary II, appeal from dismissal of their action against respondent, FPI Management Inc. (FPI); they argue: (1) because FPI was in default for not answering the amended complaint, the trial court erred in failing to enter judgment in their favor, and (2) FPI’s attorney perjured himself concerning the service of the summons and complaint. We disagree and will affirm the judgment.

1

BACKGROUND On March 2, 2018, appellants filed a form complaint for breach of contract against Westwood Vistas and FPI Management. Appellants filed an amended form complaint on March 28, 2018, which corrected the names of the original defendants (FPI Management Inc. and Westwood Vista Apartment) and added two individuals acting in their official capacities (Bonnie Darrah and Ashley Gunn). On December 18, 2018, the court granted defendants’ unopposed motion to quash service of the summons and complaint for failure to serve those documents in the manner required by the Code of Civil Procedure. FPI acknowledged receipt of service on December 28, 2018. Westwood Vista Apartment, Darrah, and Gunn were dismissed from the suit without prejudice on January 9, 2019. On January 25, 2019, FPI filed a declaration explaining its inability to meet and confer with appellants concerning deficiencies in their amended complaint, and FPI was granted an automatic 30-day extension of the deadline to file a responsive pleading. (Code Civ. Proc., § 430.41, subd. (a)(2).)1 On February 26, 2019, FPI demurred to appellants’ amended complaint. The court sustained this demurrer on March 29, 2019, with leave to amend. The ruling included an explanation of the elements that appellants would need to allege in a complaint for breach of contract in any second amended complaint and allowed appellants until April 12, 2019, to file such complaint. On April 23, 2019, appellants sought and received an extension of the deadline to file the second amended complaint until May 17, 2019. Appellants’ May 16, 2019, request for a second extension of this deadline to July 19, 2019, was denied. On May 31, 2019, appellants requested entry of default and default judgment against all original parties to the action, including FPI.