This case was last updated from Los Angeles County Superior Courts on 02/26/2020 at 00:23:42 (UTC).

AMERICAN CONTRACTORS INDEMNITY COMPANY VS KHOSRO SALEM

Case Summary

On 08/27/2018 AMERICAN CONTRACTORS INDEMNITY COMPANY filed a Contract - Other Contract lawsuit against KHOSRO SALEM. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is WENDY CHANG. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0963

  • Filing Date:

    08/27/2018

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

WENDY CHANG

 

Party Details

Plaintiff

AMERICAN CONTRACTORS INDEMNITY COMPANY

Defendant

SALEM KHOSRO

Attorney/Law Firm Details

Plaintiff Attorney

STEVENSON TRACY ANN

 

Court Documents

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

8/19/2019: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion to Set Aside/Vacate Default and Default Jud...) of 10/02/2019

10/2/2019: Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion to Set Aside/Vacate Default and Default Jud...) of 10/02/2019

Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)

10/2/2019: Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)

Motion to Set Aside/Vacate Default and / or Default Judgment - Motion to Set Aside/Vacate Default and / or Default Judgment

6/28/2019: Motion to Set Aside/Vacate Default and / or Default Judgment - Motion to Set Aside/Vacate Default and / or Default Judgment

Reply (name extension) - Reply TO OPPOSITIION TO MOTION T0 SET ASIDE JUDGMENT AND STRIKE COMPLAINT

8/15/2019: Reply (name extension) - Reply TO OPPOSITIION TO MOTION T0 SET ASIDE JUDGMENT AND STRIKE COMPLAINT

Request for Dismissal - Request for Dismissal

12/14/2018: Request for Dismissal - Request for Dismissal

Declaration Pursuant to 585 CCP in Support of Default Judgment - Declaration Pursuant to 585 CCP in Support of Default Judgment

12/14/2018: Declaration Pursuant to 585 CCP in Support of Default Judgment - Declaration Pursuant to 585 CCP in Support of Default Judgment

Declaration (name extension) - Declaration CCP 585

12/14/2018: Declaration (name extension) - Declaration CCP 585

Brief (name extension) - Brief Summary of Case

12/14/2018: Brief (name extension) - Brief Summary of Case

Judgment - Judgment - Default Judgment By Court - Before Trial - 12/14/2018 entered for Plaintiff American Contractors Indemnity Company, a California corporation against Defendant Khosro Salem.

12/14/2018: Judgment - Judgment - Default Judgment By Court - Before Trial - 12/14/2018 entered for Plaintiff American Contractors Indemnity Company, a California corporation against Defendant Khosro Salem.

Notice (name extension) - Notice of Entry of Judgment

12/31/2018: Notice (name extension) - Notice of Entry of Judgment

Abstract of Judgment - Civil and Small Claims - Abstract of Judgment - Civil and Small Claims

1/3/2019: Abstract of Judgment - Civil and Small Claims - Abstract of Judgment - Civil and Small Claims

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

10/19/2018: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Proof of Service by Substituted Service

9/17/2018: Proof of Service by Substituted Service

Civil Case Cover Sheet

8/27/2018: Civil Case Cover Sheet

Summons - on Complaint

8/27/2018: Summons - on Complaint

Complaint

8/27/2018: Complaint

Notice of Case Assignment - Limited Civil Case

8/27/2018: Notice of Case Assignment - Limited Civil Case

8 More Documents Available

 

Docket Entries

  • 12/02/2019
  • DocketPursuant to the request of moving party, Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) scheduled for 12/04/2019 at 10:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Taken Off Calendar by Party on 12/02/2019

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  • 10/02/2019
  • DocketMinute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)

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  • 10/02/2019
  • DocketCertificate of Mailing for (Hearing on Motion to Set Aside/Vacate Default and Default Jud...) of 10/02/2019; Filed by: Clerk

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  • 10/02/2019
  • DocketOn the Court's own motion, Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) scheduled for 10/02/2019 at 10:30 AM in Stanley Mosk Courthouse at Department 94 Held - Continued was rescheduled to 12/04/2019 10:30 AM

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  • 08/19/2019
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 08/19/2019
  • DocketThere being no judge available this date, Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) scheduled for 08/21/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Continued - Court's Motion was rescheduled to 10/02/2019 10:30 AM

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  • 08/15/2019
  • DocketReply TO OPPOSITIION TO MOTION T0 SET ASIDE JUDGMENT AND STRIKE COMPLAINT; Filed by: Khosro Salem (Defendant)

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  • 08/08/2019
  • DocketOpposition to Motion to Set Aside Judgment and Motion to Strike Complaint; Filed by: American Contractors Indemnity Company (Plaintiff)

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  • 06/28/2019
  • DocketMotion to Set Aside/Vacate Default and / or Default Judgment; Filed by: Khosro Salem (Defendant); As to: American Contractors Indemnity Company (Plaintiff)

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  • 06/28/2019
  • DocketHearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) scheduled for 08/21/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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13 More Docket Entries
  • 10/19/2018
  • DocketDefault entered as to Khosro Salem; On the Complaint filed by American Contractors Indemnity Company on 08/27/2018

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  • 10/19/2018
  • DocketRequest for Entry of Default / Judgment; Filed by: American Contractors Indemnity Company (Plaintiff); As to: Khosro Salem (Defendant)

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  • 09/17/2018
  • DocketProof of Service by Substituted Service; Filed by: American Contractors Indemnity Company (Plaintiff); As to: Khosro Salem (Defendant); Proof of Mailing Date: 09/02/2018; Service Cost: 48.76; Service Cost Waived: No

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  • 08/27/2018
  • DocketComplaint; Filed by: American Contractors Indemnity Company (Plaintiff); As to: Khosro Salem (Defendant)

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  • 08/27/2018
  • DocketCivil Case Cover Sheet; Filed by: American Contractors Indemnity Company (Plaintiff)

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  • 08/27/2018
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 08/27/2018
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 08/27/2018
  • DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk Courthouse

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  • 08/27/2018
  • DocketNon-Jury Trial scheduled for 02/24/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 08/27/2018
  • DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 08/30/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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Tentative Rulings

Case Number: 18STLC10963    Hearing Date: December 04, 2019    Dept: 94

American Contractors Indemnity Company v. Salem

TENTATIVE RULING:

Defendant Khosro Salem’s Motion to Set Aside Default Judgment Motion is DENIED.

ANALYSIS:

Background

On August 27, 2018, Plaintiff American Contractors Indemnity Company (“Plaintiff”) filed the

instant action for breach of indemnity agreement and common counts against Defendant Khosro

Salem (“Defendant”). Proof of Substitute Service of the Summons and Complaint was filed on

September 17, 2018. Following Defendant’s failure to file a responsive pleading, the court

entered his default on October 19, 2018 and default judgment on December 14, 2018. Plaintiff

mail-served notice of the entry of default judgment on Defendant on December 31, 2018.

On June 28, 2019 Defendant filed the instant Motion to Vacate Entry of Default and Default

Judgment. Plaintiff filed its opposition on August 8, 2019 and Defendant replied on August 15,

2019. On August 21, 2019, the court continued the motion to October 2, 2019.

On October 2, 2019, the court issued a ruling continuing the motion to December 4, 2019 and ordering Defendant to file a supplemental declaration to cure deficiencies. A certificate of mailing of the court’s order was issued on October 2, 2019.

Legal Standard

CCP section 473(b) provides, in relevant part:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

(Code Civ. Proc., § 473(b).) The court has broad discretion to vacate the entry of default, default judgment or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure and within the set time limits. Pursuant to CCP section 473(b), a motion to set aside/vacate cannot be brought more than 6 months after the entry of default and must be made within a “reasonable time.”

Further, CCP section 473.5 states in relevant part:

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered

A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.

(Code Civ. Proc., § 473.5.)

Discussion

On October 2, 2019, the court issued an order continuing the instant motion to set aside/vacate default to enable Defendant to submit a supplemental declaration to address deficiencies. Specifically, the court denied Defendant’s request for relief under CCP section 473(b) because Defendant’s motion was not timely. The court noted that an application for relief under CCP Section 473(b) must be made within a reasonable time, no more than six months after entry of the order from which relief is sought. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) The court noted that the court entered default on October 19, 2018 and that Defendant filed the instant motion more than two months after the six-month deadline expired on April 19, 2018. (10/2/19 Min. Order p. 2.)

Further, the court noted that relief could not be granted pursuant to CCP Section 473.5 because Defendant did not demonstrate that the motion was filed within a reasonable time. The court noted that Defendant offered no explanation as to why he did not receive multiple filings in this instant action that were mailed to the serve address in 2018, including the request for entry of default, request for default judgment, and notice of entry of default. (10/2/19 Min. Order p. 3; Khosro Salem Decl., ¶ 5.) Moreover, the court noted that Defendant’s declaration did not show that his lack of actual notice in time to defend the action was not caused by his avoidance of service or inexcusable neglect. (Ibid; Khosro Salem Decl., ¶ 4.) The court noted that Defendant failed to show a satisfactory excuse for not presenting a defense to the action or diligence in seeking to set aside the default. (Id. p. 4.)

To enable Defendant to cure his deficiencies, the court ordered Defendant to file and serve a supplemental declaration with facts to address the reasonable time and diligence concerns. (10/2/19 Min. Order p. 4.) The court ordered Defendant to serve the supplemental papers at least 16 court days prior to the December 4, 2019 hearing date. (Ibid.) The court noted that failure to comply with the order may result in the motion being placed off calendar or denied.

Defendant has not filed any supplemental papers and has not complied with the court’s October 2, 2019 order. The court cannot make any further determination as to whether Defendant’s diligence was reasonable. Therefore, consistent with its October 2, 2019 ruling, the court finds that Defendant’s lack of diligence in bringing the instant motion to set aside/vacate the default was not reasonable. (10/2/19 Min. Order; Khosro Salem Decl., ¶ 5.)

Conclusion

Based on the foregoing, Defendant Khosro Salem’s Motion to Set Aside Default Judgment Motion is DENIED.

Plaintiff to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.