Judge Armen Tamzarian, Case Number: 22STCV27367, Date: 2023-09-12 Tentative Ruling

Judge: Armen Tamzarian, Case: 22STCV27367, Date: 2023-09-12 Tentative Ruling

Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.

Case Number: 22STCV27367 Hearing Date: February 13, 2024 Dept: 52

Defendants Compton Car Wash, Inc. and Abrahim Aminpour’s Motion to Set Aside Default

Defendants Compton Car Wash, Inc. and Abrahim Aminpour move to set aside their defaults and the default judgment against them.

Defendants show valid grounds for discretionary relief from default. 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.” “Because the law favors disposing of cases on their merits, ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.’ ” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.)

Defendants’ counsel Ophir J. Bitton explains, “After [a] call” with plaintiff’s counsel, “I prepared a task on my firm’s case management software to have reminders to monitor the case. However, at present, I have searched and cannot find this task on the system, and I do not know if it is because I failed to properly execute the reminders or save the transaction. I never received any such reminder.” (Bitton Decl., ¶ 15.) The court finds this is an excusable error of the kind people (even diligent attorneys) sometimes make. The court further finds this mistake resulted in the default and default judgment against defendants. The reasonable conclusion is that, had Bitton continued to monitor this case, he would have filed a responsive pleading before plaintiff requested defendants’ defaults on July 10, 2023.

The record also shows another reason that supports granting relief. “An attorney has both an ethical and statutory obligation to warn opposing counsel, if counsel’s identity is known, of an intent to seek a default and to give counsel a reasonable opportunity to file a responsive pleading.” (Shapell Socal Rental Properties, LLC v. Chico’s FAS, Inc. (2022) 85 Cal.App.5th 198, 203 (Shapell).)

Plaintiff’s counsel acknowledges knowing the identity of defendants’ counsel months before requesting defendants’ defaults. Kyle J. Ignatius states, “On May 24, 2023,1 discussed this matter with” defendants’ counsel “Mr. Bitton on the phone. During this conversation, [I] stated that I would inform Michael Nourmand, the principal attorney at The Nourmand Law Firm, APC, of Mr. Bitton’s position; I also noted that Defendants were obligated to file a responsive pleading.” (Ignatius Decl., ¶ 12.)

Defendants’ counsel also describes that phone call. His position was that he “informed Ignatius that [defendants’] business was shut down as a result of Aminpour’s cancer and cancer complications” (Bitton Decl., ¶ 10) and that he “believed Nourmand, with whom I have a good relationship, would assure Ignatius that what I was conveying was believable and I hoped Ignatius would return with a more reasonable settlement posture” (id., ¶ 12). Bitton states, “Ignatius indicated that he would discuss with Nourmand and get back to me.” (Id., ¶ 13.) He further states he “expressly told Ignatius that any communications regarding the case should be sent to me and that if they were inclined to move forward with a default or otherwise in the case, to inform me directly as Aminpour was unavailable due to his condition.” (Id., ¶ 14.) Finally, he states, “I never heard from Plaintiff’s counsel on the matter thereafter.” (Id., ¶ 16.) Nothing in the record shows any further contact between plaintiff’s counsel and defendants’ counsel before plaintiff requested entry of defendants’ defaults in July 2023.

Plaintiff’s counsel was obligated to warn Bitton of an intent to seek a default. He did not expressly do so. His declaration states that, when he spoke to Bitton, he “noted that Defendants were obligated to file a responsive pleading” (Ignatius Decl., ¶ 12), but does not state he told defendants he planned to request entry of their defaults. He instead said he would speak to his firm’s principal about Bitton’s position. Bitton could reasonably conclude that meant plaintiff would do so before requesting entry of default.

In addition to the duty to warn about the intent to seek default discussed in Shapell, plaintiff’s counsel had an obligation to communicate with defendants’ counsel, not defendants themselves. “In representing a client, a lawyer shall not communicate directly or indirectly about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.” (Cal. Rules Prof. Conduct, rule 4.2(a).) Bitton expressly told Ignatius he wanted Ignatius to communicate with him, not his clients. (Bitton Decl., ¶ 14.) The proofs of service of further papers show service by mail directly on defendants and no service on Bitton or his firm.

Disposition

Defendants Compton Car Wash, Inc. and Abrahim Aminpour’s motion to set aside default is granted. The court hereby vacates the defaults entered against defendants Compton Car Wash, Inc. and Abrahim Aminpour. The court hereby vacates the default judgment entered against defendants Compton Car Wash, Inc. and Abrahim Aminpour. Defendants are ordered to file their proposed answer (attached as Exhibit D to the declaration of Ophir J. Bitton) forthwith.