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This case was last updated from Los Angeles County Superior Courts on 05/28/2019 at 18:03:06 (UTC).

BRENT SILVER VS KIARASH Z. TEHRANI, ET AL.,

Case Summary

On 10/21/2016 BRENT SILVER filed a Property - Other Real Property lawsuit against KIARASH Z TEHRANI, . This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are LISA HART COLE and BOBBI TILLMON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6589

  • Filing Date:

    10/21/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LISA HART COLE

BOBBI TILLMON

 

Party Details

Plaintiffs

BRENT SILVER CONSTRUCTION

SILVER BRENT

Defendants

ZOGHI KIA

TEHRANI KIARASH Z.

Attorney/Law Firm Details

Plaintiff Attorney

RICHARDS LESLIE

Defendant Attorneys

KRANE & SMITH

SMITH JEREMY D.

 

Court Documents

Complaint

10/21/2016: Complaint

Minute Order

5/2/2017: Minute Order

Minute Order

5/3/2017: Minute Order

Minute Order

6/29/2017: Minute Order

Application

11/30/2017: Application

Unknown

4/4/2018: Unknown

Minute Order

4/19/2018: Minute Order

Request for Entry of Default / Judgment

5/16/2018: Request for Entry of Default / Judgment

Unknown

5/21/2018: Unknown

Notice

8/3/2018: Notice

Notice

9/4/2018: Notice

Notice

11/7/2018: Notice

Proof of Personal Service

11/14/2018: Proof of Personal Service

Notice of Case Reassignment and Order for Plaintiff to Give Notice

11/16/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Unknown

1/9/2019: Unknown

Declaration

2/25/2019: Declaration

Minute Order

3/21/2019: Minute Order

Order

3/27/2019: Order

32 More Documents Available

 

Docket Entries

  • 05/20/2019
  • Motion for Attorney Fees; Filed by Kiarash Z. Tehrani (Defendant); KIA ZOGHI (Defendant)

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  • 05/01/2019
  • at 08:30 AM in Department O; Hearing on Motion to Compel Further Discovery Responses - Not Held - Taken Off Calendar by Party

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  • 04/26/2019
  • at 08:30 AM in Department O; Hearing on Motion to Compel Further Discovery Responses - Not Held - Taken Off Calendar by Party

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  • 04/24/2019
  • at 08:30 AM in Department O; Hearing on Motion to Compel Further Discovery Responses - Not Held - Taken Off Calendar by Party

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  • 04/04/2019
  • Memorandum of Costs (Summary); Filed by Kiarash Z. Tehrani (Defendant)

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  • 03/29/2019
  • Notice of Ruling; Filed by Kiarash Z. Tehrani (Defendant)

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  • 03/28/2019
  • Notice of Entry of Judgment / Dismissal / Other Order; Filed by Clerk

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  • 03/27/2019
  • Order (re: Dismissal); Filed by Kiarash Z. Tehrani (Defendant)

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  • 03/21/2019
  • at 09:30 AM in Department O; Case Management Conference - Held

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  • 03/21/2019
  • at 08:30 AM in Department O; Order to Show Cause Re: (Sanctions for Plaintiff's Failure to Appear on 1/9/19) - Held

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71 More Docket Entries
  • 03/27/2017
  • at 08:31 am in Department WEO, Lisa Hart Cole, Presiding; Order to Show Cause (RE DISMISSAL FOR PLTF'S FAILR TOAPPEAR @2-8-17CMC &FAILR TO PROSEC) - Not Held-Continued

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  • 03/27/2017
  • Minute order entered: 2017-03-27 00:00:00; Filed by Clerk

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  • 02/08/2017
  • at 08:30 AM in Department O; Case Management Conference (Conference-Case Management; OtherSee Memo Box below) -

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  • 02/08/2017
  • at 08:30 am in Department WEO, Lisa Hart Cole, Presiding; Conference-Case Management ((OSC RE DISM SET FOR PLTF'S FAILRTO APPEAR AT THIS 2-8-17 CMC &FAILR TO PROSECUTE THE ACTION.)) - Other: See Memo Box below

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  • 02/08/2017
  • Minute order entered: 2017-02-08 00:00:00; Filed by Clerk

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  • 10/21/2016
  • Civil Case Cover Sheet; Filed by Brent Silver (Plaintiff)

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  • 10/21/2016
  • Summons Filed; Filed by Attorney for Plaintiff

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  • 10/21/2016
  • Summons; Filed by Plaintiff

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  • 10/21/2016
  • Complaint; Filed by Brent Silver (Plaintiff)

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  • 10/21/2016
  • Complaint Filed

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Tentative Rulings

Case Number: SC126589    Hearing Date: September 17, 2020    Dept: O

Case Name:    Silver d/b/a Brent Silver Construction v. Tehrani, et al.

Case No.: SC126589

Hearing: 9-17-20

Calendar #:    6

Notice: OK

Complaint Filed:    10/21/16

Motion C/O: None

Discovery C/O: None

Trial Date: None

______________________________________________________________________________

SUBJECT: MOTION TO SET ASIDE JUDGMENT FILED 11-6-19 AND ORDER FOR FEES FILED 11-6-19 AND ORDER DISMISSING CASE ON 3-21-19

MOVING PARTY:  Plaintiff Brent Silver d/b/a Brent Silver Construction

RESP. PARTY: Defendant Kiarash Zohgi Tehrani

TENTATIVE RULING

Plaintiff’s Motion to Set Aside Judgment Filed 11-6-19 and Order for Fees filed 11-6-19 and order Dismissing Case on 3-21-19 (and entered on 3-27-19) is DENIED. 

The Court dismissed the action under Code of Civil Procedure (CCP) §§583.410-583.430, the discretionary dismissal statutes.  A court may, in its discretion, dismiss an action for delay in prosecution if it has not been brought to trial or “conditionally settled” within 2 years after the action is commenced.  CCP §§ 583.410, 583.420(a)(2); and CRC 3.1340. 

Defendant submitted a declaration on 3-20-19 detailing Plaintiff’s delay and failure to prosecute.  The Court refers Plaintiff to ¶¶9-28 of the declaration of J. Najemy filed on 3-20-19 and served on Richards on that date.  In order to obtain relief from the 3-21-19 dismissal, mandatory or discretionary, Plaintiff’s evidence must address his repeated failures to appear, which previously led to entry of a dismissal of the action on 6-29-17 and ultimately led to dismissal of the entire action on 3-21-19.  Plaintiff’s evidence fails to do so. 

I.  CCP §473(b) mandatory reliefDENY

“Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any…(2) resulting…dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.”  CCP §473(b).  The six-month deadline is calculated from entry of judgment, not entry of the challenged dismissal.  Judgment was entered on 11-6-19. Plaintiff’s motion was filed on 3-11-20, less than six months later.  The motion for mandatory relief is timely.

Under CCP §473(b), relief from default judgment is mandatory based on an attorney affidavit of fault, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence or neglect.  “The clause in section 473, subdivision (b) which mandates the court to grant relief unless it finds that the default was not in fact caused by lawyer error is not only a credibility testing device. It is also ‘a causation testing device.’”  Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 867.

Plaintiff’s counsel testifies that she was disbarred in February 2019 and that she vacated her office in the beginning of 2019.  See Motion, Dec. of L. Richards, 3:12-22.  However, the Court’s order for dismissal on 3-21-19 (signed order filed 3-27-19)  was made under CCP §§583.410-583.430.  The dismissal was not based on a single failure to appear or the failure to  oppose a single motion.  But rather, the dismissal was ordered because of Plaintiff’s unexcused failure to bring the action to trial within 2 years from commencement of the litigation.  Counsel’s suspension in February 2019 and her relocation in the beginning of 2019 do not provide any  explanation for the actions that caused entry of the dismissal—failure to bring the action to trial within two years of commencement.  Counsel’s declaration does not satisfy the “causation test” required to grant mandatory relief from the dismissal.  See Milton, supra, 53 Cal.App.4th at 867 (“clause in section 473, subdivision (b) which mandates the court to grant relief unless it finds that the default was not in fact caused by lawyer error is not only a credibility testing device” but also a “causation testing device”). 

In addition, the Court cannot infer from Plaintiff’s counsel’s testimony that she was disbarred in February 2019 that her client was ignorant of that fact or that Plaintiff’s counsel essentially abandoned her client.  In fact, Defense counsel submits evidence contradicting such an inference and supporting a finding that Plaintiff’s counsel knew that her client needed new counsel, that the client knew and that new counsel had been arranged to substitute into the case.  Plaintiff’s counsel emailed Defense counsel on 3-25-19, just after the 3-21-19 hearing and just before entry of the 3-27-19 order, indicating that Robert Smith was substituting in as counsel and that Plaintiff’s counsel signed the substitution on 3-25-19.  See Opposition, Dec. of J. Smith, ¶12. 

II.  CCP §473(b) discretionary reliefDENY

“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.”  CCP §473(b).

In order to obtain discretionary relief, Plaintiff must establish a reasonable mistake, excusable neglect, surprise or inadvertence.  See Solv-All v. Supr. Ct. (2005) 131 Cal.App.4th 1003, 1007-1008 (“The standard is whether a reasonably prudent person under the same or similar circumstances might have made the same error.”)  All doubts in connection with a CCP 473(b) motion should be resolved in favor of relief and a weak showing suffices.  See Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 and Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, 1136. 

“The statute's broad remedial provisions are to be liberally applied to carry out the policy of permitting trial on the merits. The party seeking relief, however, bears the burden of proof in establishing a right to relief.  The burden is a double one: the moving party must show a satisfactory excuse for his default, and he must show diligence in making the motion after discovery of the default.  Whether the moving party has successfully carried this burden is a question entrusted in the first instance to the discretion of the trial court; its ruling will not be disturbed in the absence of a demonstrated abuse of that discretion.”  Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410. 

A.  Motion for discretionary relief timely as to 11-6-19 Judgment and untimely as to 3-21-19 (3-27-19) Order of Dismissal

The motion for discretionary relief from the Court’s 3-21-19 order of dismissal is untimely.  The motion was not filed until 3-11-20, nearly a year after entry of the dismissal and approximately five months after entry of judgment. 

The Court is therefore without jurisdiction to grant relief from the 3-21-19 orders of dismissal, because it is outside the 6-month time limit.  “This six-month time limitation is jurisdictional; the court has no power to grant relief under section 473 once the time has lapsed.”  Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928. 

The motion to set aside or vacate the 11-6-19 Judgment and the 11-6-19 Order Granting Attorney’s Fees is within the outer limit of six months, but the motion must still satisfy the “reasonable time” limitation.  “Numerous courts have found no abuse of discretion in granting relief where the section 473 motions at issue were filed seven to 10 weeks after entry of judgment.  A delay is unreasonable as a matter of law only when it exceeds three months and there is no evidence to explain the delay.”  Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 34 (plaintiff’s motion for discretionary relief filed within five weeks of entry of summary judgment satisfied “reasonable time” requirement “by any reckoning”).  “What constitutes a reasonable time in any case depends upon the circumstances of that particular case and is a question of fact for the trial court.”  Id. at 33. 

Here, the motion was brought on March 11, 2019, four months after the entry of the 11-6-19 Judgment and Order granting an attorney’s fee award. Plaintiff testifies that he did not discover the 11-6-19 Judgment or Order Granting Attorney’s fees until January 2020.  See Motion, Dec. of B. Silver, 4:10-11.  Plaintiff provides no details regarding how he discovered the 11-6-19 Orders or whether he was aware that Counsel Richards was disbarred in February 2019.  The testimony of Arie Abekasis likewise lacks any detail or foundation.  See Motion, Dec. of A. Abekasis, 5:8-11. Simply put, there is no competent or persuasive evidence explaining plaintiff’s delay.  The Court, therefore, finds Plaintiff’s request for discretionary relief from the 11-6-19 Judgment is untimely based on Plaintiff’s unreasonable delay in seeking this relief. 

B.  Plaintiff fails to demonstrate excusable neglect or mistake for failing to oppose motion for attorney’s fees

“A party seeking discretionary relief on the ground of attorney error must demonstrate that the error was excusable, since the attorney's negligence is imputed to the client.  The inexcusable neglect of an attorney is usually not a proper basis for granting the client's motion under section 473.  Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the same circumstances.”  Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419. 

“Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable.  To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.”  Id. at 1423 (counsel’s failure to oppose MSJ because he misplaced the MSJ and failed to calendar the hearing or opposition was not excusable neglect). 

Defendant’s motion for attorney’s fees was unopposed.  The judgment entered on 11-6-19 was intended solely to reflect the award of fees and costs to Defendant. 

As discussed in connection with the request for mandatory relief, Richards’ declaration states she was disbarred in February 2019.  Plaintiff fails to address his knowledge or ignorance of this fact, or Defendant’s evidence that Plaintiff’s counsel was taking steps to substitute new counsel in March 2019, long before the hearing on the attorney’s fees motion and the entry of judgment in November 2019.  In light of the facts, Plaintiff failed to oppose the motion due to counsel’s inexcusable neglect, which is not grounds for discretionary relief under CCP §473(b).  As discussed in connection with the equitable relief claim, Plaintiff fails to provide sufficient evidence for the Court to find positive misconduct by Richards such that her inexcusable neglect should not be imputed to him and equitable relief should be granted.   

III.  Equitable relief based on extrinsic fraud or mistake and CCP §473(d)—DENY

A request for equitable relief based on extrinsic fraud or mistake may be brought at any time, so long as the party acted diligently in seeking relief.  See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.  “First, the defaulted party must demonstrate that it has a meritorious case. Second, party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last, the moving party must demonstrate diligence in seeking to set aside the default once discovered.”  Id. 

“Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practised on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client's interest to the other side, these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and fair hearing.”  See Estate of Sanders (1985) 40 Cal.3d 607, 614 (executor's consistent concealment and misrepresentation constituted extrinsic fraud and beneficiaries of estate were entitled to set aside of order of final distribution).

“Extrinsic mistake involves the excusable neglect of a party.  When this neglect results in an unjust judgment, without a fair adversary hearing, and the basis for equitable relief is present, this is extrinsic mistake.  Reliance on an attorney who becomes incapacitated, or incompetence of the party without appointment of a guardian ad litem, are examples of extrinsic mistake.”  Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 291. 

An attorney's neglect is imputed to his client. See Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898.  “The client's redress for inexcusable neglect by counsel is, of course, an action for malpractice.”  Id.

For attorney misconduct to support equitable relief from a default judgment due to extrinsic mistake, there must have been “neglect of an extreme degree amounting to positive misconduct by counsel, rather than mere inexcusable neglect, sufficient to obliterate the attorney-client relationship and thereby preclude any imputation of counsel's neglect to the client. Positive misconduct is found where there is a total failure on the part of counsel to represent his client.”  People v. One Parcel of Land (1991) 235 Cal.App.3d 579, 584 (counsel’s failure to file timely amended claim did not alone qualify as extrinsic mistake; however, combined with counsel’s failure to return phone calls and failure to oppose motion for default judgment, counsel’s actions were positive misconduct amounting to abandonment). 

Abandonment exists where the attorney's inexcusable neglect is so gross that it amounts to positive misconduct and “the client is relatively free from negligence.”  Seacall Development, Ltd. v. Santa Monica Rent Control Bd. (1999) 73 Cal.App.4th 201, 205.  "The exception is premised upon the concept the attorney's conduct, in effect, obliterates the existence of the attorney-client relationship, and for this reason his negligence should not be imputed to the client.”  Carroll, supra, 32 Cal. at 898.  Where the facts establish that the attorney has essentially abandoned the client, the exception to the general rule imputing counsel's negligence to the client may apply.  Id. (exception did not apply where attorney's failure to respond to discovery resulted in discovery sanction terminating plaintiff's action but there was no evidence of abandonment, counsel having actively participated in litigation). 

“Even where abandonment is shown, however, the courts also consider equitable factors in deciding whether the dismissal of an action should be set aside. These factors include the client's own conduct in pursuing and following up the case, whether the defendant would be prejudiced by allowing the case to proceed and whether the dismissal was discretionary or mandatory. The courts must also balance the public policy favoring a trial on the merits against the public policies favoring finality of judgments and disfavoring unreasonable delays in litigation and the policy an innocent client should not have to suffer from its attorney's gross negligence against the policy a grossly incompetent attorney should not be relieved from the consequences of his or her incompetence.”  Seacall Development, supra, 73 Cal.App.4th at 205 (relief based on abandonment proper where attorney filed writ of mandate on behalf of client, ordered hearing transcript and did nothing for two years thereafter, resulting in dismissal for failure to prosecute and client did not discover dismissal of action for over a year and a half). 

Plaintiff’s evidence is insufficient to establish that any of the challenged orders were entered due to counsel Richards’ abandonment or positive misconduct and Plaintiff’s relative innocence and ignorance.  Richards only testifies to suspension by the Bar in February 2019, which does not explain the failure to bring the action to trial within two years of filing.  The action was filed on 10-21-16 and was dismissed almost three years later due to failure to prosecute.  Plaintiff does not provide any testimony or evidence regarding his own knowledge or ignorance of Richards’ suspension or the alleged substitution of Robert Smith as counsel in March 2019.  Plaintiff’s evidence is simply insufficient to establish that Richards abandoned him, that such abandonment caused the dismissal, or that Plaintiff was relatively innocent.

Plaintiff also fails to establish that the challenged orders are void under CCP §473(d).  Plaintiff fails to establish that the dismissal was entered without proper notice of the 3-21-19 hearing date.  In fact, the 3-21-19 OSC re: Failure to Appear on 1-9-19 was continued from 2-7-19 after Plaintiff failed to appear on that date.  The 2-7-19 hearing date was set at the 1-9-19 CMC, when Plaintiff first failed to appear.  Richards was provided notice with the 2-7-19 hearing date by the Clerk on 1-11-19 by mail and the 3-21-19 hearing date by Defendant on 2-12-19 by mail.  Richards’ declaration does not provide any explanation for why she would not have received notice of these dates. 

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