Judge: Cherol J. Nellon, Case: BC645606, Date: 2023-10-10 Tentative Ruling

Case Number: BC645606    Hearing Date: December 19, 2023    Dept: 14

Assil v. Lavi, et al

Case Background

            Plaintiff alleges he owns 50% of a parcel of real property.

            On January 4, 2017, Plaintiff filed his verified Complaint for (1) Quiet Title and (2) Declaratory Relief against Defendants Farah Melamed Lavi (“Lavi”), Bibijan Melamed (“Melamed”), USA National Title Company (“USA National”), and DOES 1-100.

            On March 8, 2017, Defendant Lavi filed her verified Answer.

            On March 10, 2017, Defendant Melamed filed her verified Answer.

On March 27, 2017, Plaintiff voluntarily dismissed Defendant USA National, without prejudice.

On July 7, 2017, Plaintiff filed two “Amendments to Complaint” substituting Defendants Telmour Riahi (“Riahi”) and Marjan Azimi (“Azimi”) in lieu of DOES 1-2, respectively. These parties were never served.

            On April 26, 2018, the parties executed a preliminary settlement agreement in open court.

            On May 30, 2018, the parties executed an updated, interim settlement agreement in open court. This court dismissed the case and maintained jurisdiction to enforce the settlement.

            On July 11, 2018, this court ordered Plaintiff’s prior counsel to reduce the interim settlement agreement into formal and final form.

            On August 1, 2018, the parties signed the final settlement agreement, which was filed with the court.

            On October 10, 2023, this court granted a motion to enforce the settlement agreement. The court ordered that (1) the real property located at 5412 Lindley Avenue, Unit 204, Encino, California (“Lindley Property”) be sold, (2) George Jabakchurian be the selling agent, (3) Plaintiff must allow the agent to access the property, and (4) Plaintiff must withdraw a notice of lis pendens he had recorded against the property

Instant Motion

            Plaintiff now moves this court for an order setting aside the ruling it issued at the hearing on October 10, 2023.

Decision

            The motion is DENIED.

Discussion

            Plaintiff makes this motion under the auspices of Code of Civil Procedure § 473(b), arguing that he had no notice of the prior proceeding. This is not accurate.

            The motion to enforce the settlement was filed on April 12, 2023. Plaintiff received notice of the motion and filed an opposition on May 16, 2023. The court and Defendant received this opposition. Defendant filed a reply on June 13, 2023.

            The parties appeared on June 15, 2023, the date initially set for the motion. The hearing was continued to June 29, 2023. The court gave notice by mail to Plaintiff’s address of record.

            On June 26, 2023, the hearing was continued to August 17, 2023. The court gave notice by mail to Plaintiff’s address of record.

            On July 27, 2023, the hearing was continued to September 5, 2023. The court gave notice by mail to Plaintiff’s address of record.

            On August 8, 2023, the hearing was continued to September 11, 2023. The court gave notice by mail to Defendant’s address of record and directed Defendant to give notice.

            On September 6, 2023, the hearing was continued to September 26, 2023. The court gave notice by mail to Plaintiff’s address of record.

            On September 20, 2023, the hearing was continued to October 10, 2023. The court gave notice by mail to Plaintiff’s address of record.

            Plaintiff’s address of record is the same address which appears on his moving papers. Plaintiff was aware of this hearing. He filed an opposition, which this court read and considered. Even if Plaintiff missed one or more of the notices of continuance sent by the court, and thus was ignorant of the specific hearing date, he was on notice that a hearing was impending. The court’s calendar is a matter of public record, and Plaintiff could easily have discovered the date.

            Further, Plaintiff makes no argument that he had anything to present at the hearing which would have changed the outcome. As the court noted in its prior order, Plaintiff’s written opposition expressly conceded his own breach of the settlement and Defendant’s right to enforce it. In the face of those waivers, no oral argument made by Plaintiff could prevail.

Conclusion

            Plaintiff had notice of the prior proceeding, and an obligation to keep himself informed about it. He made a written submission which conceded Defendant’s rights with regard to the settlement agreement. There is no basis for this court to vacate its prior order. The motion is DENIED.