This case was last updated from Los Angeles County Superior Courts on 06/16/2019 at 11:34:15 (UTC).

RAMIN ZARRIN-EHTRAM VS ZOHREH KHABUSHANI

Case Summary

On 01/11/2016 RAMIN ZARRIN-EHTRAM filed an Other - Other Judgment lawsuit against ZOHREH KHABUSHANI. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judges overseeing this case are FRANK J. JOHNSON, SHIRLEY K. WATKINS and MICHAEL J. CONVEY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3757

  • Filing Date:

    01/11/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Other Judgment

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

FRANK J. JOHNSON

SHIRLEY K. WATKINS

MICHAEL J. CONVEY

 

Party Details

Plaintiff

ZARRIN-EHTRAM RAMIN

Defendants and Cross Plaintiffs

DOES 1 THROUGH 200

POURFARZIB REZA

KHABUSHANI ZOHREH

NILIPOUR ROBAB

HAGHIGHI HOSSEIN

AMPHIDEL PROPERTIES LLC

KHABUSHANI MICHAEL M

GROUP INVESTING

NILIPOUR REZA

Cross Defendant

ROES 1-25

Others and Not Classified By Court

KHABUSHANI MAHMOOD

GOWHARI ZOHREH

PARAMOUNT FUNDING GROUP

HAGHIGHI MOHAMMAD HOSSEIN

HERIS PROPERTIES

POURFARZIB REZA RAY

KHABUSHANI MIKE

KHABUSHANI MAHMOOD MIKE

NILI ROBAB

46 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorneys

BRENT NAJILA KORDROSTAMI

BRENT NAJILA KORDROSTAM

Defendant Attorneys

LEVY MARVIN

GHODS MOHAMMED

FASEN LEO

RAFII ROBERT

HUMPHREY JANET

BOWEN WILLIAM DALEBOUT

RUSSO JOHN SCOTT

 

Court Documents

Amendment to Complaint (Fictitious/Incorrect Name)

2/2/2018: Amendment to Complaint (Fictitious/Incorrect Name)

Request for Entry of Default / Judgment

2/2/2018: Request for Entry of Default / Judgment

Request for Entry of Default / Judgment

7/27/2018: Request for Entry of Default / Judgment

Notice of Rejection

7/27/2018: Notice of Rejection

Answer

8/7/2018: Answer

Notice

8/13/2018: Notice

Answer

10/31/2018: Answer

Other -

11/7/2018: Other -

Amendment to Complaint (Fictitious/Incorrect Name)

11/14/2018: Amendment to Complaint (Fictitious/Incorrect Name)

Order on Court Fee Waiver (Superior Court)

11/20/2018: Order on Court Fee Waiver (Superior Court)

Unknown

12/18/2018: Unknown

Request for Entry of Default / Judgment

12/18/2018: Request for Entry of Default / Judgment

Unknown

12/28/2018: Unknown

Memorandum of Points & Authorities

1/7/2019: Memorandum of Points & Authorities

Declaration

1/7/2019: Declaration

Order

1/30/2019: Order

Objection

2/15/2019: Objection

Demurrer - with Motion to Strike

4/2/2019: Demurrer - with Motion to Strike

359 More Documents Available

 

Docket Entries

  • 06/04/2019
  • at 08:30 AM in Department U, Michael J. Convey, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Not Held - Advanced and Vacated

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  • 05/30/2019
  • Declaration ( DECLARATION OF MARVIN LEVY ESQ. [Concurrently filed by Plaintiff?s Motion for Reconsideration and Declaration of Najila K. Brent and Exhibits A-F)); Filed by Ramin Zarrin-Ehtram (Plaintiff)

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  • 05/30/2019
  • Motion for Reconsideration; Filed by Ramin Zarrin-Ehtram (Plaintiff)

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  • 05/30/2019
  • Request for Dismissal; Filed by Ramin Zarrin-Ehtram (Plaintiff)

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  • 05/24/2019
  • Order (PROPOSED ORDER RE DENYING DEFENDANT HOSSEIN HAGHIGHI'S MOTION FOR TAX COSTS AND AWARDING COSTS TO NAJILA K BRENT AND NAJILA K BRENT, APLC THE SUM OF $2,436.00); Filed by Ramin Zarrin-Ehtram (Plaintiff)

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  • 05/14/2019
  • Notice (PLAINTIFF?S NOTICE RE STAY OF ALL PROCEEDINGS (BANKRUPTCY) EFFECTIVE APRIL 23, 2019 DUE TO DEFENDANT ZOHREH KHABUSHANI?S SECOND MOTION TO REOPEN HER BANKRUPTCY CASE WITHOUT A HEARING FILED ON APRIL 23, 2019 AND DEBTOR?S REQUEST FOR STAY,ETC); Filed by Ramin Zarrin-Ehtram (Plaintiff)

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  • 05/14/2019
  • Notice of Entry of Dismissal and Proof of Service; Filed by Brian Hiroshi Nomi (Defendant)

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  • 05/14/2019
  • Amendment to Complaint (Fictitious/Incorrect Name); Filed by Ramin Zarrin-Ehtram (Plaintiff)

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  • 05/10/2019
  • at 08:30 AM in Department U, Michael J. Convey, Presiding; Hearing on Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion) - Held - Motion Granted

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  • 05/10/2019
  • Opposition (PLAINTIFF?S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION O DEFENDANT BRIAN HIROSHI NOMI SPECIAL MOTION TO STRIKE (SLAPP MOTION); DECLARATION OF NAJILA K. BRENT AND EXHIBITS A-G); Filed by Ramin Zarrin-Ehtram (Plaintiff)

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807 More Docket Entries
  • 04/01/2016
  • Proof of Service; Filed by Reza Pourfarzib (Legacy Party)

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  • 03/24/2016
  • Cross-Comp Filed-Summons Issued; Filed by Reza Pourfarzib (Legacy Party)

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  • 03/24/2016
  • Answer; Filed by Reza Pourfarzib (Legacy Party)

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  • 03/14/2016
  • Application; Filed by Ramin Zarrin-Ehtram (Plaintiff)

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  • 03/14/2016
  • Answer; Filed by Michael M. Khabushani (Defendant); Mahmood Khabushani (Legacy Party); Mahmood Mike Khabushani (Legacy Party) et al.

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  • 03/14/2016
  • Order on Court Fee Waiver (Superior Court); Filed by Clerk

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  • 03/14/2016
  • Request to Waive Court Fees; Filed by Michael M. Khabushani (Defendant); Mahmood Khabushani (Legacy Party); Mahmood Mike Khabushani (Legacy Party) et al.

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  • 01/11/2016
  • Complaint; Filed by Ramin Zarrin-Ehtram (Plaintiff)

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  • 01/11/2016
  • Summons-Issued; Filed by Ramin Zarrin-Ehtram (Plaintiff)

    Read MoreRead Less
  • 01/11/2016
  • Notice of Case Management Conference; Filed by Clerk

    Read MoreRead Less

Tentative Rulings

Case Number: LC103757    Hearing Date: January 22, 2021    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

RAMIN ZARRIN-EHTRAM,

Plaintiff, 

vs. 

ZOHREH KHABUSHANI, et al.,

Defendants. 

)  

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO EXTEND THE FIVE-YEAR DEADLINE TO BRING THIS ACTION TO TRIAL

Dept. U 

8:30 a.m. 

January 22, 2021 

I. BACKGROUND

Ramin Zarrin-Ehtram (Plaintiff) initiated this action on January 11, 2016. On November 24, 2020, Plaintiff filed this Motion to extend Plaintiff’s deadline to bring this case to trial and to serve process on additional defendants. Defendant Michael Khabushani (here, Defendant) opposes this motion.

II. LEGAL STANDARD

An action shall be brought to trial within five years after the action is commenced against the defendant. (Code Civ. Proc., § 583.31.) Pursuant to Emergency Rule 10 issued by the California Supreme Court, the time for bringing to trial any civil action that was filed before April 6, 2020 is extended by six months for a total time of five years and six months.

In addition, the parties may extend the time within which an action must be brought to trial pursuant to this article by the following means:

(a) By written stipulation. The stipulation need not be filed but, if it is not filed, the stipulation shall be brought to the attention of the court if relevant to a motion for dismissal.

(b) By oral agreement made in open court, if entered in the minutes of the court or a transcript is made.

(Code Civ. Proc., § 583.330.)

When computing the time to bring an action to trial, the mandatory period is tolled and extended when: (1) the court’s jurisdiction over the action is suspended; (2) the action was stayed or enjoined; or (3) bringing the action to trial was impossible, impracticable, or futile. (Code Civ. Proc., § 583.340.) Under the statute tolling the period for bringing an action to trial while the prosecution or trial of the action is “stayed or enjoined,” the prosecution of an action is “stayed” only when the stay encompasses all proceedings in the action. (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 726.) When a complete stay is in effect, bringing the action to trial is impossible. (Ibid.)

The plaintiff bears the burden of bringing an action to trial within mandatory five-year period (as extended by the Emergency Rule’s additional six months). (People v. Superior Court of California, In and For City and County of San Francisco (1948) 86 Cal.App.2d 204, 205.) Whether action shall be dismissed for failure to bring it to trial within the mandatory time as provided by this section depends upon whether plaintiff has had reasonable opportunity to bring the action to trial. (Bank of America Nat. Trust & Sav. Ass'n v. Superior Court in and for City & County of San Francisco (1948) 84 Cal.App.2d 34, 38.) Notwithstanding apparently mandatory language of this section under which action is to be dismissed unless brought to trial within five years after filing, this section will not be applied where it is impossible, impracticable or futile due to causes beyond party's control to bring action to trial during five-year period, and the test for this exception is whether plaintiff had a reasonable opportunity to bring his case to trial. (Bennett v. Bennett Cement Contractors, Inc. (1981) 125 Cal.App.3d 673, 676-677.)

III. DISCUSSION

Plaintiff moves to extend the deadline for bringing this case to trial based on the delays caused by the bankruptcy stays and intentional postponements arising from Defendant’s reopening of her allegedly fraudulent 2009 bankruptcy case twice during the pendency of this action.

As noted above, this action was commenced on January 11, 2016. Without any tolling of the mandatory period, the trial in this case would have to commence by July 11, 2021 to avoid dismissal. This date is calculated by adding the five years dictated in the statute and another six months granted by the emergency rule. The Court finds that the deadline for beginning the trial is also extended here because of the bankruptcy stays imposed in this case.

A bankruptcy stay was issued from March 7, 2016 through August 27, 2017 and then again from April 23, 2019 through January 28, 2020 as to all parties. (2016 Notice of Stay; 2019 Notice of Stay.) The Court finds that these stays tolled the statutory time for bringing this case to trial for a period of 818 days. Thus, the mandatory deadline for bringing this case to trial is now October 10, 2023.

Plaintiff also requests an extension of the three-year period for service of the complaint on new defendants based on his tolling arguments. The mandatory time for service of complaint and summons is three years from the filing of the action. (Code of Civ. Proc. §583.210.) As this action was commenced on January 11, 2016, this period would have expired, in the absence of any extension, two years ago on January 11, 2019.

While application of a tolling of 818 days would extend the service period to April 8, 2021, the Court declines to find that such an extension is proper based on this record. The justifications for tolling the service deadline requires a greater and more particularized showing than for tolling the trial deadline. In this case, Plaintiff has failed show that a specific defendant was not amenable to process, that the stays imposed barred Plaintiff from serving other defendants, or that service was otherwise impossible, impracticable or futile during the stay periods. This is the type of showing required to toll the mandatory service period. (Code of Civ. Proc. §583.240.)

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion is GRANTED IN PART and DENIED IN PART. The Court holds that the deadline for bringing this case to trial under Code of Civil Procedure section 583.310, et seq., and Emergency Rule 10 is and extends the deadline to that date. As to Plaintiff’s request to effectuate a broad extension of the service deadline under Code of Civil Procedure section 583.210, et seq., the Court finds that Plaintiff has failed to make the requisite showing for such an extension, which expired on January 11, 2019.

Plaintiff is ordered to give notice of the Court’s ruling.

DATED: January 22, 2021 

_____________________ 

Hon. Theresa M. Traber 

Judge of the Superior Court 

Case Number: LC103757    Hearing Date: December 09, 2020    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

RAMIN ZARRIN-EHTRAM,

Plaintiff, 

vs. 

ZOHREH KHABUSHANI, et al.,

Defendants. 

)  

[TENTATIVE] ORDER RE: ATTORNEY FASEN’S MOTIONS TO BE RELIEVED AS COUNSEL 

Dept. U 

8:30 a.m. 

December 9, 2020 

I. BACKGROUND

Attorney Leo Fasen (Fasen) filed four motions to be relieved as counsel for Anacapa Investment, Michelle Lingreen, Reza Pourfarzib, and Hossein Haghighi on April 8, 20, and 21, 2020, respectively.

This motion originally came before the Court on September 17, 2020. The Court continued this motion hearing until this date to allow Fasen to file Proofs of Service on all parties. Fasen satisfied this requirement. At the prior hearing, Fasen reached an agreement with Defendants Pourfarzib and Haghighil whereby Fasen agreed to provide a billing statement including hours, costs, and necessary reimbursements in exchange for his clients signing a Substitution of Attorney.

During a subsequent hearing on November 12, 2020, the Court continued the hearing to December 9, 2020 so defendants would have the benefit of Fasen’s representation at the then upcoming hearing on the pending reconsideration motions. Judge Michael Convey ruled on those motions on December 3, 2020. The motion to be relieved returns to this Court’s calendar.

//

II. LEGAL STANDARD

Code of Civil Procedure section 284 provides that upon the order of the court, an attorney in an action or special proceeding may be changed at any time before or after judgment of final determination upon the application of the client or attorney, after notice from one to the other. An attorney is permitted to withdraw if the client’s conduct renders it unreasonably difficult for the attorney to effectively represent the client. (Cal. Rules of Prof. Conduct 3-700(C)(1)(d).) Whether the court should grant or deny an attorney’s request to be relieved as counsel is within the discretion of the court, as long as the withdrawal does not “work an injustice in the handling of the case.” (Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1173.) Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be permitted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.)  

California Rule of Court, rule 3.1362 requires motions to be relieved as counsel pursuant to Code of Civil Procedure section 284(2) be made on Judicial Council Forms MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). Furthermore, the requisite forms must be served on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) If the client is served by mail, there must be a declaration showing confirmation of the service address within the past 30 days. (Ibid.

III. DISCUSSION

On September 29, 2020, Fasen submitted Proofs of Service demonstrating service of these motions on all parties. The filings submitted by Fasen and his clients demonstrates that a financial conflict has arisen between them justifying an order relieving him as their counsel of record. Defendants will not suffer an injustice if the Court grants the motion as the matter has yet to be set for trial and the Court can schedule the trial to allow defendants to secure alternative counsel in advance of trial.

The fee disputes between Fasen and his former clients are not before this Court for resolution and will not be addressed further in this action. The Court ordered a meet and confer and accounting on fees expended solely as a means for the parties and Fasen to reach an agreement for the execution of a substitution of attorney. This effort proved futile.

IV. CONCLUSION

For the foregoing reasons, Fasen’s motions to be relieved as counsel are GRANTED.

Attorney Fasen is ordered to give notice of the Court’s ruling. Fasen will be relieved of his duties as counsel of record upon filing of the proof of service showing service of this Court’s order on all parties.

DATED: December 9, 2020 

_____________________ 

Hon. Theresa M. Traber 

Judge of the Superior Court 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

RAMIN ZARRIN-EHTRAM,

Plaintiff, 

vs. 

ZOHREH KHABUSHANI, et al.,

Defendants. 

)  

[TENTATIVE] ORDER RE: SHOKOHI’S MOTION TO QUASH SERVICE OF SUMMONS AND MOTION TO SET ASIDE DEFAULT

Dept. U 

8:30 a.m. 

December 9, 2020 

I. BACKGROUND

Ramin Zarrin-Ehtram (Plaintiff) initiated this action on January 11, 2016. Default was entered against Mansour Shokohi (here, Defendant) on July 11, 2019. Defendant filed these motions to quash service of summons and to set aside default on September 10, 2020.

II. LEGAL STANDARDS & DISCUSSION

A. Request for Judicial Notice

Defendant requests the Court take judicial notice of the following documents in this action: (1) the July 11, 2019 Proof of Service for Defendant; (2) Plaintiff’s July 11, 2019 Request for Entry of Default against Defendant; and (3) Michael Khabushani’s July 15, 2019 declaration with its 17 exhibits.

Evidence Code section 452(d) authorizes this Court to judicially notice court records of this state and those of any other court. Thus, as each of the requested documents are part of the Court’s record in this action, judicial notice is taken of each.

B. Motion to Quash

“A defendant . . . may serve and file a notice of motion . . .  to quash service of summons on the grounds of lack of jurisdiction of the court over him or her. . . .”  (Code. Civ. Proc., § 418.10(a).) A court lacks jurisdiction over a party if there has not been proper service of process. (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.) “When a motion to quash is properly brought, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 568.)  

In relevant part, Code of Civil Procedure section 415.10 provides “[a] summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served.” When personal service on an individual cannot be effected, Code of Civil Procedure section 415.20 provides for substitute service as follows:

[A] summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

[A] summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.

Defendant argues Plaintiff did not effectuate proper service of the complaint on him. On December 21, 2018, Plaintiff allegedly served via substitute service a copy of the summons and complaint on Michael Mahmood Khabushani (Khabushani) at the Van Nuys Courthouse East (courthouse). Defendant contends Plaintiff fraudulently represented in her Proof of Service that Khabushani was a person authorized to accept service on Defendant’s behalf and that the courthouse is neither Defendant’s dwelling nor business address. The Proof of Service also indicates that the summons and complaint were mailed to Defendant at an invalid business address.

Defendant submits Khabushani’s declaration which states that he has never been authorized, instructed, or empowered by any individual or entity to act as agent of service for any legal documents or summons. (Khabushani, ¶¶ 2-3.) Defendant confirms that Khabushani has never been authorized, instructed or empowered to accept service on Defendant’s behalf. (Defendant’s declaration, ¶ 4.) Moreover, it is Defendant’s position that he and Khabushani are adversaries in this action, thus, no reasonable person would believe that an individual would be authorized to accept service on his or her adversary’s behalf. (Id., ¶ 5.)

Plaintiff opposes on the grounds that Defendant had actual notice of being named as a party because he generally appeared for both case management conferences on November 6, 2019 and February 5, 2020.  Plaintiff also contends Defendant evaded service of process after being alerted by Khabushani.  In addition, Plaintiff provides correspondence between counsel showing that Plaintiff’s counsel agreed to dismiss the complaint against Defendant if he provided a sworn statement of true facts or, in the alternative, Plaintiff would set aside the default if Defendant filed his answer to the complaint. (Brent declaration, ¶¶ 8-9.)

Moreover, Plaintiff argues that he served Khabushani on Defendant’s behalf because Khabushani was named as the authorized person to receive correspondence from AAA for Defendant and for Khabushani’s business according to the Wyoming Secretary of State Annual Report. (Gaynor declaration, p. 9.)

The Court first considers Plaintiff’s argument that Defendant made several general appearances in court, thus voluntarily subjecting himself to the Court’s jurisdiction.  A motion to quash must be made at defendant's initial appearance in the action, on or before the last day to plead “or within any further time that the court may for good cause allow.” (Code Civ. Proc., § 418.10(a); Marriage of Obrecht (2016) 245 Cal.App.4th 1, 16-17.)  A general appearance is participation in the action in a manner that recognizes the court's jurisdiction before filing a motion to quash. “If the defendant raises an issue for resolution or seeks relief available only if the court has jurisdiction over the defendant, then the appearance is a general one.” (Factor Health Mgmt. v. Sup.Ct. (Apex Therapeutic Care, Inc.) (2005) 132 Cal.App.4th 246, 250.) An attorney's appearance for a defendant at a case management conference, and participating therein without objecting as to lack of jurisdiction over the defendant, has been held to be a general appearance by defendant because the case management process is “premised on the trial court having jurisdiction over the parties participating in it.” (Mansour v. Sup.Ct. (Eidem) (1995) 38 Cal.App.4th 1750, 1757.)

Here, the November 6, 2019 and February 5, 2020 Minute Orders reflect that Houman Chitsaz (Chitsaz), Defendant’s attorney, appeared at both case management conferences on Defendant’s behalf, even though he was in default at the time.  Judicial precedent categorizes these as general appearances. Thus, under Code of Civil Procedure section 418.10(a), Defendant was required to bring his motion to quash at the first case management conference in November 2019.  

Defendant suggests that he could not bring a motion to quash service during the pendency of the bankruptcy stay.  Even if true, the stay was lifted on March 4, 2020.  Defendant has failed to provide an adequate explanation for why he waited an additional six months to file his motion to quash service and set aside the default.  Further, the Court’s closure did not prevent the filing of motions, even if their hearing dates might be continued.  What is more, the Court reopened for a wider range of hearings in June 2020, three months before Defendant moved to quash service of the summons.

Therefore, the Court denies Defendant’s motion to quash service of the summons on the grounds that it was untimely brought because it should have been brought shortly after Defendant appeared and began participating in the action and, even if the bankruptcy stay interfered with its filing, there is no good cause for delaying the motion for a full six months after the stay was lifted.   

C. Motion to Set Aside Default

In relevant part, Code of Civil Procedure section 473(b) provides:

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.

When the judgment, dismissal, order, or other proceeding determines the ownership or right to possession of real or personal property and a notice in writing is personally served both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record notifying that party that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under Code of Civil Procedure section 473 shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice. No affidavit or declaration of merits shall be required of the moving party. (Code Civ. Proc., § 473(b).)

i. Timeliness

Default was entered against Defendant on July 11, 2019. Defendant filed this motion to set aside his default on September 10, 2020 -- more than one year after default was entered against him.  Defendant submits evidence, however, that his counsel entered into an agreement with Plaintiff’s attorney on December 18, 2019 to “toll any statute that applies to setting aside the default against [Defendant] so that [he] is not prejudiced” by the delay caused by the parties’ negotiations to a stipulated set aside of the default.  (Chitzsaz Decl., ¶ 6 and Exh. C.)  Since the tolling agreement was struck before the statutory six-month period expired and there is no evidence submitted that it was terminated before the filing of Defendant’s motion to set aside the default, the Court finds that the motion to set aside the default was timely filed under Code of Civil Procedure section 473(b).

ii. Reason for Delay

Defendant maintains he did not know he was named as a party in this action until early September 2019, when a co-Defendant brought it to his attention, because the summons, complaint, and default judgment were mailed to a business address that was no longer valid. (Defendant’s declaration, ¶ 2.) Defendant’s counsel communicated the insufficient service to Plaintiff’s counsel and requested the default be set aside. Plaintiff’s counsel purportedly refused unless Defendant cooperated with her prosecution. Defense counsel tried to informally set aside the default with Plaintiff’s counsel multiple times but has been unsuccessful. (Chitsaz declaration, ¶¶ 3 – 7.) This motion to set aside the default was further delayed by the bankruptcy stay and then the Court’s closure due to COVID-19. (Id., ¶ 8.)

Plaintiff opposes on the grounds that Defendant appeared generally at both case management conferences on November 6, 2019 and February 5, 2020. Plaintiff also takes issue with Defendant failing to include his proposed answer along with this motion.

As explained above in connection with the Court’s ruling on the untimely filing of the motion to quash, the Court finds that Defendant did not act expeditiously in filing his motion to set aside the default.  His explanations for the repeated delays are not persuasive.  That said, the parties did enter into an agreement to toll the time for bringing the motion to set aside.  Further, the Court acknowledges that there is a strong policy in this state of allowing the parties to resolve their disputes on the merits and, thus, finds that the default against Defendants will be set aside on the condition that Defendant file his answer to the complaint within ten day of this ruling.

III. CONCLUSION

For the foregoing reasons, Defendant’s motion to quash is DENIED.

Defendant’s motion to set aside default is GRANTED on the condition Defendant file his answer to the complaint.

The Court denies both parties’ requests for sanctions.

Defendant is ordered to give notice of the Court’s rulings.

DATED: December 9, 2020 

_____________________ 

Hon. Theresa M. Traber 

Judge of the Superior Court 

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