On 11/04/2013 FARZAN SHAHRI filed a Personal Injury - Other Personal Injury lawsuit against 449 LE DOUX PROPERTIES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ELIA WEINBACH, KEVIN C. BRAZILE, MARC MARMARO, MICHELLE WILLIAMS COURT and RUTH ANN KWAN. The case status is Disposed - Dismissed.
Disposed - Dismissed
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
KEVIN C. BRAZILE
MICHELLE WILLIAMS COURT
RUTH ANN KWAN
250 DOUGLAS PARTNERS
449 LE DOUX PARTNERS
DOES 1 THROUGH 100
J & S PROPERTIES ENTERPRISES INC.
RR ROOFING INC.
GEOULLA DANIEL D. ESQ.
ALFARO MEYLIN PATRICIA
GEOULLA DANIEL D.
LAW YUK K. ESQ.
LAW YUK K.
1/24/2018: PLAINTIFF'S NOTICE OF MOTION AND MOTION TO SET ASIDE AND VACATE THE JUDGEMENT FOR DISMISSAL FILED ON JANUARY 12, 2017; ETC.
5/2/2018: NOTICE OF RUL[NG RE: ORDER TO SHOW CAUSE
10/30/2018: Minute Order - Minute Order (Legacy Event Type : OSC-Failure to File Default Judg)
2/14/2019: Notice of Case Management Conference
2/22/2019: Notice - Notice of Case Management Conference
4/20/2015: Minute Order -
8/21/2015: DEFENDANTS' MOTION TO COMPEL RESPONSES TO DEMAND FOR INSPECTION, PRODUCTION, AND COPYING OF DOCUMENTS AND OTHER TANGIBLE THINGS, SET ONE
10/5/2015: DEFENDANTS 449 LE DOUX PARTNERS', 250 DOUGLAS PARTNERS', AND J & S PROPERTIES ENTERPRISES, INC.'S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, AGAINST FARI
11/23/2015: Minute Order -
12/2/2015: NOTICE OF CASE REASSIGNMENT
2/9/2016: CASE MANAGEMENT STATEMENT -
2/10/2016: CIVIL DEPOSIT -
7/5/2016: DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR TERMINATING SANCTIONS; DECLARATION OF MARYAM AZIZI
10/25/2016: DEFENDANTS' EX PARTE APPLICATION TO COMPEL ALL PLAINTIFFS TO PROVIDE FURTHER RESPONSES TO PRE-TRIAL INTERROGATORIES, SETS ONE AND. TWO; OR ALTERNATIVELY TO SHORTEN TIME WITHIN WHICH THE MOTION CAN BE
11/14/2016: DEFENDANTS' MOTION IN LIMINE NO.14 TO EXCLUDE REFERENCE TO EVIDENCE OF ANY APPRAISAL REPORTS NOT PRODUCED IN DISCOVERY
11/14/2016: DEFENDANTS' MOTION IN LIMINE NO.16 TO EXCLUDE REFERENCE TO UNTIMELY DEPOSITION REVISIONS
11/14/2016: DEFENDANTS' MOTION IN LIMINE NO. 9 TO EXCLUDE REFERENCE TO PERSONAL INJURY DAMAGES
11/15/2016: [PROPOSED] JOINT WITNESS LIST
Docketat 08:30 AM in Department 37; Hearing on Motion to Set Aside/Vacate Dismissal (CCP 473) - Held - Motion DeniedRead MoreRead Less
DocketCertificate of Mailing for ((Hearing on Motion to Set Aside/Vacate Dismissal (CCP 473)) of 01/31/2020); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Hearing on Motion to Set Aside/Vacate Dismissal (CCP 473))); Filed by ClerkRead MoreRead Less
DocketMotion to Set Aside/Vacate Dismissal; Filed by Farideh Shahri (Plaintiff); Farnaz Shahri (Plaintiff); Farzan Shari (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department 37; Order to Show Cause Re: (Dismissal for failure to bring a case to trial within five years) - HeldRead MoreRead Less
Docketat 08:30 AM in Department 37; Order to Show Cause Re: (Failure to enter default judgment) - HeldRead MoreRead Less
DocketMinute Order ( (Order to Show Cause Re: Failure to enter default judgment; Or...)); Filed by ClerkRead MoreRead Less
DocketCertificate of Mailing for ((Order to Show Cause Re: Failure to enter default judgment; Or...) of 11/22/2019); Filed by ClerkRead MoreRead Less
DocketRequest for Entry of Default / Judgment; Filed by Farnaz Shahri (Plaintiff)Read MoreRead Less
DocketSummary of the Case; Filed by RR Roofing Inc. (Defendant)Read MoreRead Less
DocketDemand for Jury Trial; Filed by 449 Le Doux Partners (Defendant); 250 Douglas Partners (Defendant); J & S Properties Enterprises, Inc. (Defendant)Read MoreRead Less
DocketAnswer; Filed by 449 Le Doux Partners (Defendant); 250 Douglas Partners (Defendant); J & S Properties Enterprises, Inc. (Defendant)Read MoreRead Less
Docketat 1:00 PM in Department 92; Unknown Event Type - Held - Motion GrantedRead MoreRead Less
DocketMinute order entered: 2014-02-07 00:00:00; Filed by ClerkRead MoreRead Less
DocketMinute OrderRead MoreRead Less
DocketNOTICE OF RELATED CASERead MoreRead Less
DocketNotice of Related Case; Filed by Farzan Shari (Plaintiff); Farideh Shahri (Plaintiff); Farnaz Shahri (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketPLAINTIFFS COMPLAINT FOR DAMAGES: (1) PREMISES LIABILITY; ETCRead MoreRead Less
DocketComplaint; Filed by Farzan Shari (Plaintiff); Farideh Shahri (Plaintiff); Farnaz Shahri (Plaintiff)Read MoreRead Less
Case Number: BC526501 Hearing Date: January 31, 2020 Dept: 37
HEARING DATE: January 31, 2020
CASE NUMBER: BC526501
CASE NAME: Farzan Shahri, et al. v. 449 Le Doux Properties, et al.
MOVING PARTY: Plaintiffs, Farzam Shahri (erroneously named as Farzan Shari), Farideh Ahdout (erroneously named as Farideh Shahri and Farnaz Shahri
RESPONDING PARTY: Defendants, RR Roofing, Inc., et al.
TRIAL DATE: Complaint dismissed with prejudice November 22, 2019
PROOF OF SERVICE: OK
MOTION: Motion to Set Aside Dismissal and Vacate Judgment
OPPOSITION: None, as of January 24, 2020
TENTATIVE: Plaintiffs’ Motion to Set Aside Dismissal and Vacate Judgment is DENIED.
This action arises out of alleged water damage to Plaintiffs’ apartment unit. As set forth in the Complaint, the factual background is as follows: Plaintiffs Farzam Shahri (erroneously named as “Farzan Shahri”), Farideh Ahdout (erroneously named as Farideh Shahri) and Farnaz Hazany (a.k.a. Farnaz Shahri) are tenants at the real property located at 449 S. Le Doux Road, Los Angeles, California 90048 (the “Subject Property”). Plaintiffs allege that Defendants 449 Le Doux Partners, 250 Douglas Partners, and J & S Properties Enterprises, Inc. (collectively the “Owner Defendants”) are the owners and managers of the Subject Property. Plaintiffs allege that their apartment unit suffered water damage after Defendants repaired the roof of the property on November 4, 2011. Defendant RR Roofing, Inc. (“RR Roofing”) was allegedly the company that was hired to do the roofing work on the Subject Property.
Plaintiff filed the Complaint on November 4, 2013 alleging eleven causes of action: (1) premises liability; (2) negligence; (3) negligence per se; (4) breach of implied warranty of habitability; (5) breach of statutory warranty of habitability; (6) breach of covenant of quiet enjoyment; (7) negligent hiring, supervision, and training; (8) nuisance; (9) trespass; (10) constructive eviction; and (11) breach of contract. Plaintiffs assert the first, second, third, eighth and ninth causes of action against RR Roofing.
This matter was originally set to be tried on November 29, 2016. A notice of settlement was filed on November 18, 2016 as to Defendants 449 Le Doux Partners, 250 Douglas Partners and J&S Properties Enterprises, Inc. These parties were dismissed with prejudice on January 12, 2017 and January 19, 2017. The Court also dismissed this matter as to all remaining Defendants on January 19, 2017, after Plaintiff failed to appear. Plaintiff moved to set aside and vacate the judgment for dismissal on January 24, 2018, which the Court granted on April 18, 2018.
On August 17, 2018, Plaintiffs’ application for default judgment first came on for hearing. At the hearing, the court denied the application, finding that Plaintiffs had not offered sufficient support for their request for damages and had not identified the amount of their settlement with the settling Defendants.
On December 14, 2018, Plaintiffs’ application for default judgment again came on for hearing. The application was again denied without prejudice. The court again found that Plaintiffs’ submitted evidence did not demonstrate that they incurred the amount of damages requested, and that they did not submit evidence regarding the amount of settlement with the settling Defendants. Further, the court additionally found that the amount of requested damages exceeded the amount stated in the Complaint, and that Plaintiffs were to file and serve a First Amended Complaint (“FAC”) and obtain entry of default on the FAC to recover a greater amount of damages than the $25,000 stated in the Complaint.
On February 27, 2019, Plaintiffs filed their FAC. The FAC requested damages of “at least $166,159.21.” On August 9, 2019, default was entered against RR Roofing, Inc. On September 18, 2019, Plaintiffs’ counsel informed the court at an order to show cause hearing that a default package had not yet been submitted. As such, the order to show cause hearing was continued to November 22, 2019 at Plaintiffs’ request.
On November 22, 2019, the court dismissed Plaintiffs’ action with prejudice. The hearing was titled “Order to Show Cause Re: Failure to enter default judgment; Order to Show Cause Re: Dismissal for failure to bring a case to trial within five years.” At the hearing, the court ruled as follows:
“There being no default judgment submitted to the Court, and pursuant to Code of Civil Procedure section 583.360, the Court issues the following order: The Court orders the Amended Complaint (1st) filed by Farideh Shahri, et al. on 02/27/2019 dismissed with prejudice.”
(see November 22, 2019 Minute Order.)
Plaintiffs now move for to vacate the dismissal of their action entered on November 22, 2019 pursuant to Code of Civil Procedure section 473(b) and section 583.340. No opposition has been filed to the instant motion.
Code of Civil Procedure, section 473, subdivision (b) provides for two distinct types of relief—commonly differentiated as “discretionary” and “mandatory”—from certain prior actions or proceedings in the trial court. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124 (Luri).) “Under the discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,’ the court has discretion to allow relief from a ‘judgment, dismissal, order, or other proceeding taken against’ a party or his or her attorney.” (Ibid.)
“Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court shall vacate any ‘resulting default judgment or dismissal entered.’ ” (Ibid., internal citations and quotation marks omitted, quoting Code Civ. Proc., § 473, subd. (b).) “[A] mea culpa declaration by an attorney establishing that a default, default judgment, or dismissal was entered against his or her client as the result of attorney neglect deprives the trial court of discretion to deny relief, even without a showing that the neglect was excusable.” (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 65 (Tackett).) Whenever relief is granted under the mandatory relief provision, the court must “direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc., § 473, subd. (b).)
Code of Civil Procedure, section 583.340 provides that in computing the time in which an action must be brought to trial, time in which any of the following conditions existed should be excluded: “(a) the jurisdiction of the court to try the action was suspended, (b) prosecution or trial of the action was stayed or enjoined, (c) bringing the action to trial, for any other reason, was impossible, impracticable, or futile.”
Plaintiffs contend that the dismissal of the action should be vacated on two grounds: (1) dismissal of the action, to the extent it was due to failure to bring the case to trial within five years, is improper because it was impossible to do so, and, alternatively (2) dismissal of the action should be vacated due to attorney neglect. (Motion, 5-11.)
Impossibility to Try Action: Code of Civil Procedure Section 538.340
Plaintiffs contend that the time limit for bringing the instant action to trial should be tolled for all of the following reasons: (1) impossibility to bring the action to trial “due to non-defaulting Party litigating the case,” (2) impossibility during the time the court dismissed the entire action on January 19, 2017 until it was reinstated, and (3) impossibility due to following the court’s instruction to file and serve a FAC to claim damages above $25,000.
First, and with regard to Plaintiffs’ contention that it could only begin seeking a default judgment against RR Roofing, Inc. after they settled with the other defendants, the court is not persuaded. Plaintiffs specifically contend that “the appropriate procedure is to allow the litigation and trial to proceed against the non-defaulting party” and then judgment be entered against both. (Motion, 5-6.) Plaintiff appears to be contending that it was impossible to take a default against RR Roofing, Inc., until litigation was complete against the non-defaulting parties. Plaintiffs rely on Mirable v. Smith (1953) 119 Cal.App.2d 685 in support of this proposition. However, this reliance is misplaced. Mirable stands for the proposition that entering judgment against a defaulting defendant may not be appropriate if another non-defaulting defendant is still in the action. Mirable does not stand for the proposition that Plaintiffs were not permitted to even request entry of default until their settlement with settling Defendants. Here, settling Defendants filed an answer on March 24, 2015 and RR Roofing, Inc. did not file an answer at that time, or at any time to date. As such, Plaintiffs could have requested entry of default against RR Roofing, Inc. prior to the settlement, or as early as approximately April 2015. Plaintiffs’ failure to do so does not constitute grounds to toll the requirement to bring this action to trial within five years.
Second the court agrees that the five-year period should be tolled during the time period from January 19, 2017, when the action was dismissed, until April 18, 2018, when the court granted Plaintiffs equitable relief from the dismissal.
A calculation of the time limit is as follows:
Action filed: November 4, 2013
Date Action dismissed by court: January 19, 2017
First Request for entry of default: July 24, 2017
Date Action reinstated by court: April 18, 2018
Request for entry of default: May 8, 2018
Default package denied, requested to file FAC: December 14, 2018
FAC filed: February 27, 2019
FAC served: April 22, 2019
Default entered: August 9, 2019
Case dismissed with prejudice: November 22, 2019
Based on the above sequence of dates, there were 1,172 days between the action being filed and the case initially being dismissed by the court, or approximately 3 years, 2.5 months. Thereafter, there was a period of 454 days, or 1 year, 2.9 months in which the five-year period would have been tolled. Plaintiffs requested entry of default against RR Roofing, Inc. less than month after the expiration of this period.
However, Plaintiffs were required to resubmit their default package on three separate occasions due to the default package failing to conform to various procedural requirements or for insufficient evidence. As described above and in the court’s prior rulings, Plaintiffs failed to provide sufficient evidence to demonstrate that they were entitled to the amount of damages claimed and, as such, the court continued the hearing so that Plaintiffs could provide sufficient evidence. Although Plaintiffs received entry of default against RR Roofing, Inc. by August 9, 2019, Plaintiffs’ counsel informed the court on September 18, 2019 that a default package was not yet ready. Further, as discussed below, Plaintiffs provide no reasoning in this motion for why a default package was not timely and correctly filed, despite multiple attempts given by the court.
As such, the court does not agree with Plaintiffs’ argument that the case was erroneously dismissed for failure to prosecute. Although the court agrees in part that the five-year time period should have been tolled, this does not overcome the fact that Plaintiffs’ delay in obtaining a default judgment from May 8, 2018 onward was caused solely by their failure to file a default package that conformed to procedural requirements. Further, Plaintiffs do not contend by this motion and have not previously contended that the court’s rulings denying each attempt at entry of default were erroneous.
Accordingly, the court does not vacate the dismissal based on Code of Civil Procedure section 583.340, as Plaintiffs have failed to demonstrate that the five-year period was tolled because it was impossible or impractical to bring this action to trial.
Attorney Neglect: Code of Civil Procedure Section 473(b)
For the below reasons, the court also is not persuaded by Plaintiffs’ argument based on Code of Civil Procedure section 473(b), as Plaintiff’s counsel’s declaration does not suffice to demonstrate excusable neglect and Plaintiffs have not otherwise made a sufficient showing of such.
Plaintiffs contend in the alternative that the dismissal of this action should be set aside under the discretionary relief provision of Code of Civil Procedure, section 473(b). (Motion, 10-11.) However, Plaintiffs’ sole contention that any neglect was excusable appears to be that “Plaintiff’s attorney failed to calendar the five year mandatory dismissal date.” (Motion, 10.) Plaintiff’s counsel, Ted Ravan, only alleges that he apologizes to the Court for any inconvenience “that may have caused.” (Ravan Decl. ¶ 20.) Further, he attests that “the problem now is that it is too late to initiate an action anew as the statute of limitations has passed.” (Ravan Decl. ¶ 19.) Ravan also attests that Plaintiff would be unduly and irreparably prejudiced if the dismissal were not set aside. (Id.)
As described above, Plaintiffs’ motion has failed to demonstrate that the five-year time limit of Code of Civil Procedure section 583.360 should be tolled during their multiple attempts to obtain a default judgment against RR Roofing, Inc. Further, given the foregoing, the court finds that Plaintiffs have failed to demonstrate how not brining the case to trial within five years was due to excusable neglect, or how failing to correctly file a default judgment package against RR Roofing, Inc. was due to excusable neglect.
Given the foregoing, the court does not vacate the dismissal pursuant to Code of Civil Procedure section 473(b).
Plaintiffs’ Motion to Set Aside Dismissal and Vacate Judgment is DENIED.
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