Failure to Timely Answer following a overruled Demurrer

[Profman]

What is the name of your state (only U.S. law)? This Issue is for California.

Can a Plaintiff file a Default, if a Defendant fails to timely answer to the Complaint in a overruled Demurrer ?

In this instant case. The Court requires the Defendant to file an answer within 10 days, following a Demurrer that is overruled. The Court denied a longer period to file an answer.

Instead of answering the Complaint within the court ordered time (10 days), the Defendant files a Motion for Reconsideration to the Demurrer to extend the time which is scheduled to be heard after two months. The Motion for Reconsideration is frivolous and intended to delay the case, and perhaps to give more time to formulate an answer.

The Questions is :
Can a Default be entered by the Clerk, even though a Motion for Reconsideration is filed on the overruled Demurrer by the Defendant ?

If the Clerk of the Court refuses to allow a Default, due to the Reconsideration Motion, what are the best option ? i.e. Motion to Enter a Default ?

 

[latigo]

What is the name of your state (only U.S. law)? This Issue is for California.

Can a Plaintiff file a Default, if a Defendant fails to timely answer to the Complaint in a overruled Demurrer ?

In this instant case. The Court requires the Defendant to file an answer within 10 days, following a Demurrer that is overruled. The Court denied a longer period to file an answer.

Instead of answering the Complaint within the court ordered time (10 days), the Defendant files a Motion for Reconsideration to the Demurrer to extend the time which is scheduled to be heard after two months. The Motion for Reconsideration is frivolous and intended to delay the case, and perhaps to give more time to formulate an answer.

The Questions is :
Can a Default be entered by the Clerk, even though a Motion for Reconsideration is filed on the overruled Demurrer by the Defendant ?

If the Clerk of the Court refuses to allow a Default, due to the Reconsideration Motion, what are the best option ? i.e. Motion to Enter a Default ?

The premise to both question is totally flawed in that you are mistakenly assign the clerk with a judicial function. The court must order that the clerk enter the defendant's default. The clerk is nothing more than a scribe.

You have but two "options"" at this juncture: One, to resist the defendant's pending motion. Second, to move for an OSC as to why sanctions should not be imposed in accordance with Rule 128.7 Cal. CCP, (which will most likely be denied).