Judge Holly J. Fujie, Case Number: 23STCV25545, Date: 2025-02-06 Tentative Ruling

This action arises from an agreement in which Plaintiff contracted with Defendants to construct a gazebo and an outdoor BBQ area on Plaintiff’s property. On October 19, 2023, Plaintiff filed a complaint (the “Complaint”) against Defendants alleging causes of action for: (1) breach of contract; (2) negligence; (3) unfair business practices; (4) trespass; (5) intentional misrepresentation; (6) unjust enrichment; (7) conversion/embezzlement; (8) violation of Business & Professions Code section 7031; (9) violation of Penal Code section 496; and (10) fraudulent transfer.

On May 22, 2024, the Court entered default against defendants FQB, Moghaddam and Eli. On September 17, 2024, the Court entered default against defendant Hosseni.

On November 8, 2024, Defendants filed the instant motion to set aside defaults (the “Motion”). On January 24, 2025, Plaintiff filed an opposition to the Motion (the “Opposition”). On January 30, 2025, Defendants filed a reply (the “Reply”).

Plaintiff’s Evidentiary Objections to the Declaration of Farshid Seyed Hosseni

Plaintiff’s Evidentiary Objections to the Declaration of Elham Riahi Moghaddam

Plaintiff’s Evidentiary Objections to the Supplemental Declaration of Farshid Seyed Hosseni

Plaintiff’s Evidentiary Objections to the Supplemental Declaration of Elham Riahi Moghaddam

“A motion for relief under section 473 is addressed to the sound discretion of the trial court and an appellate court will not interfere unless there is a clear showing of an abuse. [Citation.] The statute is remedial and should be liberally applied to carry out the policy of permitting trial on the merits, but the moving party has the burden of showing good cause. [Citations.]” (David v. Thayer (1980) 133 Cal.App.3d 892, 904-905.)

Section 473 subdivision (b) of the Code of Civil Procedure (“CCP”) provides for both discretionary and mandatory relief from a judgment, dismissal, and/or order or other proceeding taken against a party through his or her mistake, inadvertence, surprise, or excusable neglect. (CCP, § 473, subd. (b) [mandatory relief more narrowly targeted to defaults, default judgments, and dismissals]; Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.)

The discretionary provision of section 473, subdivision (b), states that “[t]he 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.” (CCP, § 473, subd. (b).) Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein and be made within a reasonable time not exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (CCP, § 473, subd. (b).)

Defendants bring this Motion to set aside default on the grounds that the defaults were entered based on excusable neglect, mistake and surprise. Defendants state that they mistakenly believed that their attorney at the time had responded to the Complaint and their bankruptcy attorney represented that this claim would be resolved in bankruptcy court. (Mot., pp. 9:10-10:17; 12:1-13-12.) This position is supported by Hosseni and Moghaddam’s declarations. (Hosseni Decl. ¶¶ 7-8, 10, 13; Moghaddam Decl., ¶¶ 10-11.) Defendants bring this Motion within six months after the defaults were entered and it is accompanied by Defendants’ sworn affidavits and a copy of the answer proposed to be filed. (Mot., Hosseni Decl, Ex. A; Moghaddam Decl.) This is sufficient to support a finding that Defendants’ excusable neglect led to entry of default against them. Plaintiff's arguments in the Opposition to the Motion are unpersuasive given the strong policy favoring the resolution of disputes on their merits.

Thus, the Motion to Vacate and Set Aside Default and Default Judgment is GRANTED.

The Defaults entered by the Clerk against Farshid Seyed Hosseni, Elham Riahi Moghaddam, Eli Tour LLC and First Quality Builds LLC are VACATED. Defendants are each ordered to file an answer to the Complaint within 10 days of this order.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court