Pending - Other Pending
Property - Other Real Property
RALPH C. HOFER
SUSAN J. WOLF LAW OFFICES OF
SHAHIN MOTALLEBI LAW OFFICES OF
THOMULKA RUSSELL J
TEST PARTY FOR TRUST CONVERSION
THOMULKA RUSSELL J
THOMULKA RUSSELL JAMES
SUSAN J. WOLF LAW OFFICES OF
SHAHIN MOTALLEBI LAW OFFICES OF
8/12/2020: Request For Copies - REQUEST FOR COPIES STATE BAR OF CA SUBPOENA FOR RECORDS
7/7/2020: Order - ORDER ON EX PARTE APPLICATION FOR AN ORDER DIRECTING PAYMENT FROM THE LOS ANGELES SUPERIOR COURT'S CONDEMNATION AND INTERPLEADER FUND TO DEFENDANT SHAHNAZ MOKHTARI
7/7/2020: Notice of Ruling
7/6/2020: Opposition - OPPOSITION TO EX PARTE APPLICATION
7/7/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION DIRECTING PAYMENT FROM LOS AN...)
6/17/2020: Reply - REPLY OPPOSITION TO MOTION
6/26/2020: Notice of Entry of Judgment / Dismissal / Other Order
6/26/2020: Judgment - JUDGMENT AFTER COURT TRIAL
6/26/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR RECONSIDERATION AND TO REVOKE ORDER GRA...)
6/30/2020: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION FOR AN ORDER DIRECTING LA COUNTY AUDITOR OR CONTROLLER TO ISSUE WARRANT AND PAY MONEY ON DEPOSIT IN COURT - P'S & A'S
7/1/2020: Opposition - OPPOSITION TO EX PARTE MOTION
7/1/2020: Notice - NOTICE NOTICE OF CHANGE IN THE TIME OF THE HEARING ON EX PARTE APPLICATION
7/2/2020: Reply - REPLY REPLY TO OPPOSITION TO EX PARTE APPLICATION
7/2/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER DIRECTING LA COU...)
7/6/2020: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION DIRECTING PAYMENT FROM LASC CONDEMNATION AND INTERPLEADER FUND - P'S & A'S
7/6/2020: Notice of Ruling
6/16/2020: Opposition - OPPOSITION OPPOSITION TO MOTION FOR RECONSIDERATION
4/16/2020: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW COURT ORDER CONTINUING CIVIL, TRIA...)
DocketRequest For Copies (State Bar of CA Subpoena for Records); Filed by Clerk[+] Read More [-] Read Less
Docketat 11:00 AM in Department D; Hearing on Ex Parte Application (Directing Payment from Los Angeles Superior Court's Condemnation and Interpleader Fund to Defendant Shahnaz Mokthtari filed on behalf of Defendant Shahnaz Mokhtari) - Held[+] Read More [-] Read Less
DocketNotice of Ruling; Filed by SHAHNAZ MOKHTARI (Defendant)[+] Read More [-] Read Less
DocketMinute Order ( (Hearing on Ex Parte Application Directing Payment from Los An...)); Filed by Clerk[+] Read More [-] Read Less
DocketOrder (On Ex Parte Application For An Order Directing Payment From The Los Angeles Superior Court's Condemnation And Interpleader Fund To Defendant Shahnaz Mokhtari); Filed by SHAHNAZ MOKHTARI (Defendant)[+] Read More [-] Read Less
DocketNotice of Ruling; Filed by SHAHNAZ MOKHTARI (Defendant)[+] Read More [-] Read Less
DocketEx Parte Application (Ex Parte Application Directing Payment from LASC Condemnation and Interpleader Fund - P's & A's); Filed by SHAHNAZ MOKHTARI (Defendant)[+] Read More [-] Read Less
DocketOpposition (to Ex Parte Application); Filed by Test Party for Trust Conversion (Non-Party)[+] Read More [-] Read Less
Docketat 11:00 AM in Department D; Hearing on Ex Parte Application (for an Order Directing LA County Auditor or Controller to issue Warrant and Pay Money on Deposit with the Court. or in the alternative, for An Order Shortening Time filed on behalf of Defendant Shahnaz Mokhtari) - Held - Motion Denied[+] Read More [-] Read Less
DocketMinute Order ( (Hearing on Ex Parte Application for an Order Directing LA Cou...)); Filed by Clerk[+] Read More [-] Read Less
DocketNotice (OF PENDENCY OF ACTION (LIS PENDENS) CCP SECTION 405, ET SEQ. ); Filed by Attorney for Plaintiff[+] Read More [-] Read Less
DocketNotice; Filed by OZRA YAZDANPANAH (Plaintiff)[+] Read More [-] Read Less
DocketNotice of Case Assignment - Unlimited Civil Case[+] Read More [-] Read Less
DocketNotice of Case Management Conference[+] Read More [-] Read Less
DocketSummons Filed[+] Read More [-] Read Less
DocketNotice (of OSC)[+] Read More [-] Read Less
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DocketComplaint filed-Summons Issued[+] Read More [-] Read Less
Case Number: ****6532 Hearing Date: June 26, 2020 Dept: NDC
Case No. EC 066532
Case Name: Yazdanpanah v. Mokhtari
MOTION FOR RECONSIDERATION
Moving Party: Shahin Montallebi, Esq.
Responding Party: Defendant Shanaz Mokhtari
FACTUAL AND PROCEDURAL BACKGROUND:
Plaintiff Ozra Yazdanpanah, the mother of defendant Shahnaz Mokhtari, alleges that plaintiff’s son, Majeid Mokhtari, held title to a family home in Encino, and that plaintiff and the family, including defendant, agreed to sell the property and purchase a family home located in Sherman Oaks. Plaintiff alleges that in December of 2003, plaintiff and her late husband entered into a partnership agreement with defendant Shahnaz pursuant to which the Sherman Oaks property would be purchased in defendant’s name and the defendant would occupy the main home with her family, and would share in the mortgage payments, taxes and insurance with plaintiff and her late husband. Plaintiff alleges that in consideration of plaintiff’s down payment, plaintiff and her husband would occupy the guest house at the Sherman Oaks property for as long as they desired or until they passed on. The husband passed away in 2015, but plaintiff still occupies the guest home.
Plaintiff alleges that in March of 2017, defendant entered into escrow to sell the home, and in April of 2017, defendant had plaintiff served with a 60 Day Notice to Vacate. Plaintiff alleges that the subject property was put into defendant’s name only for the purpose of qualifying for a loan, but defendant now wrongfully claims she owns the property.
The complaint alleges causes of action for breach of partnership agreement, promissory fraud, specific performance, and elder abuse.
On April 11, 2017, plaintiff filed a Notice of Pendency of Action (Lis Pendens), which was recorded on April 10, 2017.
On April 13, 2018, the court heard a motion brought by defendant Mokhtari to require an undertaking of plaintiff to maintain the lis pendens. The motion was granted, and the court ordered plaintiff to post an undertaking, setting the bond “at a sum in the amount of $12,500, for carrying costs plus $32,000 for attorneys’ fees, for a total of $44,500.”
The bond was posted.
The matter went to a court trial in July through September of 2019. On January 16, 2020, the court filed its Statement of Decision, finding against plaintiff and awarding damages to defendant in the amount of $82,754.39, representing the net proceeds of the sale of the Stern Property.
Judgment has not yet been entered.
On February 19, 2020, the court heard an ex parte application brought by defendant Mohtari for an order relieving as attorney of record defendant’s attorney Shahin Montallebi, , who had refused to execute a substitution of attorney substituting new counsel, as well as an ex parte application by defendant to enjoin attorney Montallebi from collecting sums from the bond posted in this matter.
The ex parte applications were granted. The court’s minute order also states, “Statement of Decision in this Case to become final as of this date.”
ANALYSIS: (Reconsideration cannot be granted based on a CCP ;473 claim, on matter presented at an earlier hearing, or on a later-enacted statute that is not retroactive; Gilberd v. AC Transit, 32 CA4th 1494, 1500; see also Weil & Brown, Civil Procedure Before Trial, ;9:328 et seq.).
CCP ; 1008 (a) specifically requires:
“The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”
Subdivision (d) provides that a violation of this section may be punishable as contempt and warrant sanctions. Subdivision (e) provides “No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” Here, the declaration fails to state any of the required information. Although the declaration purports to identify what new or different facts are presented by this motion, those facts appear to be that the prior request for ex parte relief was not an emergency, and that defendant was not entitled to the relief on the grounds sought. It is not clear why these arguments could not have been made at the previous hearing.
The opposition indicates that although moving party was given multiple notices of the prior hearing, moving party failed to file written opposition, or appear at the hearing. [Shtofman Decl., paras. 3-8, Exs. 2, 3]. As argued in the opposition, when bringing a motion for reconsideration based on new facts, the moving party must present “a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.” Garcia v. Hejmadi, (1997) 58 Cal.App.4th 674, 690. The fact that counsel did not effectively argue then existing facts known to counsel is not a ground for reconsideration. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.
The motion fails to explain why moving party could not have opposed the ex parte application or appeared at the prior hearing and previously made the arguments now being asserted. The motion is accordingly denied for failure to comply with the procedural requirements of bringing such a motion, and the failure to present any new or different facts, circumstances or law to support reconsideration.
Defendant Shahnaz Mokhtari has filed an untimely opposition to the motion. Under CCP ;1005(b):
“All papers opposing a motion…shall be filed with the court and a copy served on each party at least nine court days… before the hearing.”
Under CRC Rule 3.1300(d), “If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.”
Here, the opposition was served and filed on June 16, 2020, for a June 26, 2020 hearing date, only eight court days prior to the hearing, so was one court days late. The court, in its discretion, could refuse to consider the untimely opposition, but elects not to do so.
Under CCP section 1008(a):
“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted...any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.”
This subdivision further provides:
“For a failure to comply with this subdivision any order made on a subsequent application may be revoked or set aside on ex parte motion.”
Under CCP section 1008, subdivision (e):
“This section specifies the court's jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”
The trial court’s determination of a motion for reconsideration is reviewed for abuse of discretion. See Wiz Technology, Inc. v. Coopers & Lybrand (2003, 2nd Dist.) 106 Cal.App.4th 1, 16.
The motion is brought by defendant’s former counsel of record to reconsider the granting of an ex parte application to prevent former counsel from collecting any sums being held by the court as an undertaking in this matter in favor of defendant.
Evidently, defendant’s former counsel had filed with the court on February 5, 2020, on behalf of defendant, a [Proposed] Order to Withdraw Funds and Disburse (Cash Bond Civil Deposit), requesting that the bond sum of $44,500 be
“withdrawn and distributed as follows:
1. The amount of $12,500, plus the interest earned
thereon, to be disbursed to SHAHNAZ MOKHTARI;
2. The amount of $32,000, plus the interest earned
thereon, to be disbursed to SHAHIN MOTALLEBI, Attorney at Law.”
The attorney argues that there was no exigency in granting the “injunctive relief” preventing the attorney from withdrawing the funds because the court held the funds in its own account, and had not executed the proposed order. It is also argued that injunctive relief should be granted only on a showing of irreparable harm and a probability of prevailing, which was not shown by defendant.
These are not new or different facts or circumstances, and would not support the relief sought here, which is evidently to release the funds to former counsel.
This is improper, and it is not even clear how former counsel has standing to seek such relief on behalf of himself in this matter.
In any case, even if the court were to reconsider its ruling, the court would reach the same result in connection with any release of the bond funds held by the court.
The bond was ordered pursuant to CCP section 405.34, which provides, in pertinent part:
“Subject to the provisions of Sections 405.31 and 405.32, at any time after a notice of pendency of action has been recorded, and regardless of whether a motion to expunge has been filed, the court may upon motion by any person with an interest in the property, require the claimant to give the moving party an undertaking as a condition of maintaining the notice in the record title….”
The moving party here was defendant, not the attorney for defendant, so it is not established here that defendant’s former attorney has any claim to the undertaking.
Moreover, liability on the bond in this matter would be governed by CCP ; 996.440, which provides, in pertinent part:
“(a) If a bond is given in an action or proceeding, the liability on the bond may be enforced on motion made in the court without the necessity of an independent action.
(b) The motion shall not be made until after entry of the final judgment in the action or proceeding in which the bond is given and the time for appeal has expired or, if an appeal is taken, until the appeal is finally determined. The motion shall not be made or notice of motion served more than one year after the later of the preceding dates.”
The relief sought by the former attorney may only be made by affirmative motion against the bond, which motion has not been made here. In addition, there has been no judgment entered, and any such motion cannot be made until after entry of the final judgment in the action and the time for appeal has expired. The motion is accordingly denied.
The opposition argues that the former attorney would not be entitled to any sum under the bond, based on alleged misconduct on the part of the former attorney, which appears to be beyond the scope of the issues raised by this motion.
Request for Sanctions
Defendant in opposition requests monetary sanctions for the expense of having had to oppose this motion, arguing the motion is substantively without merit and procedurally defective.
Relief is sought under CCP ; 1008 (d), which provides:
“(d) A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7. In addition, an order made contrary to this section may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending.”
To the extent sanctions are sought pursuant to CCP section 128.7, that section requires that a separate motion be filed, and that the motion be served, but not filed, until 21 days later to permit the challenged paper to be withdrawn. This procedure has evidently not been followed here, and the sanctions requested will accordingly be denied.
Shahin Montallebi, Esq.’s Application to Reconsider and to Revoke Order Granting Defendant Shanaz Mokhtari’s Ex Parte Application to Enjoin Shahin Montallebi, Esq.from Obtaining Any Monies From the Undertaking that was Deposited with the Court:
The court in its discretion has considered the untimely opposition, filed and served one court days late. Counsel for defendant is cautioned that in the future the Court may refuse to consider papers not filed in compliance the applicable rules, statutes, and deadlines.
Motion is DENIED. Procedurally, the declaration in support of the motion fails to comply with the requirements of CCP ; 1008 (a), which requires that the party making application, “shall state by affidavit what application was made before, when and to what judge,” and “what order or decisions were made.” In addition, the notice and the and the motion itself fails to show any new or different facts which were not known to the moving party or could not have been argued at the previous hearing on which the motion is based, as required under CCP ; 1008. Even if the court were to reconsider its ruling in light of the arguments made in the moving papers, the rulings concerning the ex parte application would not change. Moving party had filed an improper proposed order with the Court, and the Court appropriately prevented that order from being improperly entered. It is not clear that moving party has any standing to pursue the release of bond funds to former counsel, when the bond was awarded to protect defendant Shanaz Mokhtari. The release of bond funds must also be pursued only by noticed motion for that specific relief, and any such motion would be premature in this matter, as final judgment has not yet been entered. See CCP; 996.440.
Monetary sanctions sought by the opposing party are denied, for failure to comply with the procedural requirements of CCP section 128.7.
GIVEN THE RECENT CORONAVIRUS CRISIS, UNTIL FURTHER ORDERED, DEPARTMENT D WILL ALLOW APPEARANCES ONLY BY COURTCALL.
Please make such arrangements in advance if you wish to appear via CourtCall at (888) 882-6878 (or www.courtcall.com). Counsel and parties (including self-represented litigants) are not to personally appear, absent a compelling emergency reason. If none of the litigants on a matter set up a CourtCall appearance, then the Court will assume the parties are submitting on the tentative.
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