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Court of Appeal:
No Error in Not Striking Answer of Defendant to Amended Pleading Despite Earlier Default
Under Circumstances, Presiding Justice Rubin Says, Changes Impacted Defendant Though They Only Applied Directly to Co-Defendants
By a MetNews Staff Writer
The Court of Appeal for this district has rejected the contention that a Los Angeles Superior Court judge erred in declining to strike the answer to an amended complaint where the defendant had failed to respond to the plaintiff’s initial pleading, a default had been entered, and no new allegations were made against him.
Thursday’s unpublished opinion, by Presiding Justice Laurence D. Rubin of Div. Five, quotes a footnote in the Fifth District Court of Appeal’s Oct. 21, 2014 opinion in Weakly-Hoyt v. Foster as reciting:
“When, after a defendant’s default has been entered, the plaintiff amends the complaint in a matter of substance, the amendment opens the default, it must be served on the defendant, and the defendant is entitled to an opportunity to respond. This rule does not apply when the amendment is one of form, or one that is immaterial as far as the defaulting defendant is concerned.”
Plaintiff’s Assertion
Changes in the amended pleading are immaterial as to defendant Nicholas Langerica, plaintiff Damien Perez asserted, because those changes only pertain to other defendants. Rubin disagreed, pointing out that changes relating to other defendants had an impact on Perez.
Perez, a former gang member, was a resident at a faith-based drug and alcohol rehabilitation home in Monterey County, operated by Victory Outreach, International and Victory Outreach Salinas. Langerica was assistant pastor for the region in which the home is located.
The sole cause of action against to which Langerica was a party alleged negligence in allowing Perez, as part of his required community service work, to pass out out leaflets in Chinatown, inhabited by members of rival gangs. It was averred that “DEFENDANTS breached their duty of care to PLAINTIFF by failing to take reasonable safety precautions, and assigning PLAINTIFF to pass out leaflets on behalf of the DEFENDANTS without first removing his visible neck tattoo.”
As a result, Perez contended, he was shot outside the home by an unknown assailant on July 13, 2016.
Perez brought suit on April 26, 2017; Langerica was personally served on July 22, 2017; a default was entered on Oct. 17, 2017; Perez filed an amended complaint on Jan. 9, 2018; Langerica answered on Feb. 5, 2019; and on March 14, 2019, the plaintiff moved for an order striking the pastor’s answer based on the default.
In that motion, he maintained that “the changes made to the original Complaint could not possibly broaden or increase the liability to which Langerica was already subject because of his default.”
The amended complaint eliminated a cause of action seeking to hold Victory Outreach, International and Victory Outreach Salinas liable, under respondeat superior for actions of Langerica; altered the prayer; and changed some allegations relating to negligent hiring and supervision.
Judge Stephen I. Goorvitch denied Perez’s motion on April 10, 2019.
Basis of Appeal
That denial formed the basis for Perez’s appeal from a Nov. 18, 2019 summary judgment granted by Goorvitch in favor of Langerica (on the basis of a lack of duty).
There was no error, Rubin declared, explaining:
“As the trial court pointed out, plaintiffs first amended complaint eliminated the cause of action for respondeat superior. In doing so, plaintiff subjected Langerica to a greater risk of damages as Victory Outreach International and Victory Outreach Salinas could no longer be held jointly liable for the damages attributable to Langerica’s alleged negligence. As originally alleged, plaintiff could have executed any judgment solely on the two Victory Outreach defendants, subject to later application of comparative negligence principles, thus sparing Langerica from loss.”
The case is Perez v. Langerica, B304082.
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