On 05/15/2019 KOSNETT LAW FIRM, A SOLE PROPRIETORSHIP filed a Contract - Other Contract lawsuit against ARMAN MAJIDI. 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.
*******4723
05/15/2019
Disposed - Judgment Entered
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
WENDY CHANG
KOSNETT LAW FIRM A SOLE PROPRIETORSHIP
MAJIDI ARMAN
KOSNETT LOUIS V.
12/20/2019: Opposition (name extension) - Opposition to Motion to Set Aside/Vacate Default
10/31/2019: Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court)
10/31/2019: Proof of Service by Mail - Proof of Service by Mail
10/31/2019: Proof of Service by Mail - Proof of Service by Mail
10/31/2019: Motion to Set Aside/Vacate Default and / or Default Judgment - Motion to Set Aside/Vacate Default and / or Default Judgment
10/31/2019: Proof of Service by Mail - Proof of Service by Mail
9/13/2019: Abstract of Judgment - Civil and Small Claims - Abstract of Judgment - Civil and Small Claims
9/5/2019: Judgment - Judgment by Default
8/8/2019: Declaration Pursuant to 585 CCP in Support of Default Judgment - Declaration Pursuant to 585 CCP in Support of Default Judgment
8/6/2019: Proof of Service by Substituted Service - Proof of Service by Substituted Service
8/7/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment
8/8/2019: Memorandum of Costs (Summary) - Memorandum of Costs (Summary)
5/15/2019: First Amended Standing Order - First Amended Standing Order
5/15/2019: Civil Case Cover Sheet - Civil Case Cover Sheet
5/15/2019: Complaint - Complaint
5/15/2019: Summons - Summons on Complaint
5/15/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case
5/15/2019: Civil Case Cover Sheet - Civil Case Cover Sheet
DocketMinute Order (Ruling on Submitted Matter)
DocketCertificate of Mailing for (Ruling on Submitted Matter) of 01/24/2020; Filed by: Clerk
DocketMinute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)
DocketHearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) scheduled for 01/08/2020 at 10:30 AM in Stanley Mosk Courthouse at Department 94 updated: Result Date to 01/08/2020; Result Type to Held - Taken under Submission
DocketOpposition to Motion to Set Aside/Vacate Default; Filed by: Kosnett Law Firm, a sole proprietorship (Plaintiff)
DocketHearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) scheduled for 01/08/2020 at 10:30 AM in Stanley Mosk Courthouse at Department 94
DocketProof of Service by Mail; Filed by: Kosnett Law Firm, a sole proprietorship (Plaintiff)
DocketProof of Service by Mail; Filed by: Arman Majidi (Defendant); As to: Kosnett Law Firm, a sole proprietorship (Plaintiff)
DocketRequest to Waive Court Fees; Filed by: Arman Majidi (Defendant)
DocketOrder on Court Fee Waiver (Superior Court); Signed and Filed by: Clerk; As to: Arman Majidi (Defendant)
DocketProof of Service by Substituted Service; Filed by: Kosnett Law Firm, a sole proprietorship (Plaintiff); As to: Arman Majidi (Defendant); Proof of Mailing Date: 06/25/2019; Service Cost: 502.00; Service Cost Waived: No
DocketNon-Jury Trial scheduled for 11/12/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 05/18/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94
DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk Courthouse
DocketComplaint; Filed by: Kosnett Law Firm, a sole proprietorship (Plaintiff); As to: Arman Majidi (Defendant)
DocketCivil Case Cover Sheet; Filed by: Kosnett Law Firm, a sole proprietorship (Plaintiff); As to: Arman Majidi (Defendant)
DocketCivil Case Cover Sheet; Filed by: Kosnett Law Firm, a sole proprietorship (Plaintiff); As to: Arman Majidi (Defendant)
DocketSummons on Complaint; Issued and Filed by: Kosnett Law Firm, a sole proprietorship (Plaintiff); As to: Arman Majidi (Defendant)
DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk
DocketFirst Amended Standing Order; Filed by: Clerk
Case Number: 19STLC04723 Hearing Date: January 08, 2020 Dept: 94
Judgment Debtor Arman Majidi’s Motion to Set
Aside Default and Default Judgment is DENIED. I. Background On May 15, 2019, Plaintiff Kosnett
Law Firm (“Judgment Creditor”) filed an action against Arman Majidi (“Judgment
Debtor”) for breach of contract and common counts. On August 7, 2019, default
was entered against Judgment Debtor. On September 5, 2019, a default judgment
was entered against Judgment Debtor in the amount of $8,708.39. On October 31, 2019, Judgment
Debtor filed the instant Motion to Set Aside Default and Default Judgment (the
“Motion”). On December 20, 2019, Judgment Creditor filed an Opposition brief. To
date, no reply brief has been filed. II. Legal
Standard & Discussion A. Service Code of Civil Procedure section 1005
requires that all moving and supporting papers for a motion be served and filed
at least 16 court days before the hearing on that motion. (Code Civ. Proc., §
1005, subd. (b).) “The moving and supporting documents served shall be a copy of the papers filed or to be
filed with the court.” (Id.) (Italics
added.) Here, Judgment Debtor filed his Motion
and Proof of Service on October 31, 2019. His Notice of Motion and Motion are
dated October 31, 2019. (Mot., pp. 2, 4.) Judgment Creditor filed three filed proofs
of service, which appear to all be the same, stating he served the Notice of
Motion and Motion by mail on October 22, 2019. (10/22/19 Proof of Service, ¶¶ 4,
6.) Because the proofs of service are all dated before the moving and supporting papers were signed and dated, whatever
papers Judgment Debtor served cannot be the same papers filed with the Court. Thus,
Judgment Debtor has failed to satisfy the procedural requirements of Code of
Civil Procedure section 1005. Furthermore, service by mail requires
a declaration by the person effectuating service stating the declarant’s
residence or business address, that the declarant is over the age of 18 and not a party to the action, the name and
address of the person served, that the envelope was sealed and deposited in the
mail with prepaid postage, and the date and place of deposit in the mail. (Code
Civ. Proc., § 1013a.) (Italics added.) Here, Judgment Debtor himself signed all
three proofs of service for this Motion. Because Judgment Debtor is a party to
the action, he has not satisfied the requirements of Code of Civil Procedure,
section 1013a. However, “[i]t is well settled that
the appearance of a party at the hearing of a motion and his or her opposition
to the motion on its merits is a waiver of any defects or irregularities in the
notice of motion. [Citations.]” (Alliance
Bank v. Murray (1984) 161 Cal.App.3d 1, 7.) Because Judgment Creditor
submitted an opposition to the Motion, it has waived any challenges to the
deficiencies in the notice. A. CCP § 473(d)
Code
of Civil Procedure section 473, subsection (d) provides “[t]he court may…on
motion of either party after notice to the other party, set aside any void
judgment or order.” Generally, a motion to set aside a void default judgment
can be filed at any time. (OC Interior
Services, LLC. v. Nationstar Mtg. (2017) 7 Cal.App.5th 1318, 1327.)
However, if the grounds for the motion being void is lack of proper service,
the time limitations set forth in Code of Civil Procedure section 473.5 apply
by analogy. (Cal. Judges Benchbook: Civil Proceedings After Trial, § 1.82.)
Code of Civil Procedure section 473.5 requires these motions to be filed the
earlier of 180 after notice of entry of default or two years from the entry of
default judgement. Judgment Debtor timely brings this
motion. He argues that the judgment and/or default is void under this code
section because he does not reside nor work in Los Angeles County, and thus the
Court lacks jurisdiction over this matter. (Mot., p. 3.) Judgment Debtor fails
to provide any evidence as to why the Court lacks jurisdiction over this
matter. Indeed, the parties entered into a contract in Los Angeles to be
performed with the county of Los Angeles, and thus this Court does have
jurisdiction over Judgment Debtor. (See International
Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement,
et al. (1945) 326 U.S. 310, 316; Burger
King Corp. v. Rudzewicz (1985) 471 U.S. 462, 475; Code Civ. Proc., §
410.10.) The Court also notes that venue is
proper in Los Angeles under Code of Civil Procedure 395, subdivision (a).) Judgment Debtor also alleges he was
“surprised to find a default judgment was entered against [him] without
providing [him] an opportunity to respond.” However, Judgment Creditor admits
he was aware of a November 12, 2020 “hearing” date, (which was the trial date).
(Majidi Decl., p. 4.) “[T]he trial court does not have the legal power to set
aside the default simply because the defendant did not realize the legal effect
of failing to file an answer. [Citation.]” (Yarbrough
v. Yarbrough (1956) 144 Cal.App.2d 610, 615.) Because Judgment Debtor knew
of the pendency of action against him, he cannot argue he did not know he was
under an obligation to take action. Thus, Judgment Debtor is not entitled
to relief under Code of Civil Procedure 473, subsection (d) on the basis of
surprise or mistake. B. CCP §
473.5 Code of Civil Procedure section 473.5
provides: (Code Civ.
Proc., § 473.5, subd. (a).) Here, Judgment Debtor argues that he
does not have a permanent address where he lives and can receive mail and as a
result, service of summons did not result in actual notice. (Mot., p. 3.) Judgment Creditor filed a proof of
service on July 2, 2019 demonstrating Judgment Debtor was served by substituted
service on June 23, 2019. (7/2/2019 Proof of Service.) The proof of service
also included a declaration from a private investigator who determined Judgment
Debtor resided at 18631 Redwood St., Fountain Valley, CA 92708. (Id., Frost Decl., ¶ 3.) A declaration of service by a
registered process server is entitled to a presumption that any facts set forth
in the declaration are true. (Cal. Evid. Code § 647; Rodriguez v. Cho (2015) 236 Ca.4th 742, 750.) Judgment Creditor
bears the burden on this issue. However, he has not provided any evidence to
overcome the presumption that he was served by substituted service and thus has
not carried his burden. A. CCP
1788.61 Judgment Debtor cites to Code of Civil
Procedure section 1788.61, arguing that “service of summons did not result in
actual notice in time to defend action brought by a debt buyer.” (Mot., p. 4.) The Court notes that Judgment Debtor has not
provided any evidence that Judgment Creditor is a debt collection buyer, which
is required for Civil Code section 1788.61 to apply. B. Other
Arguments Judgment Debtor argues Judgment
Creditor cannot prove the amount he owes the amount indicated or that he signed
and accepted the mediation services in question. (Majidi Decl., p. 4.) He also
argues that Judgment Creditor did not afford him an opportunity to request
arbitration as mandated by the attorney-client contract. (Majidi Decl., p. 4.) However,
these arguments do not provide a basis to vacate default and default judgment
under the appropriate statute. IV. Conclusion
& Order For the foregoing reasons, Judgment
Debtor Arman Majidi’s Motion to Set Aside Default and Default Judgment is DENIED. Moving
party is ordered 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.