Judge: Israel Claustro, Case: LAHIJANI v. LAHIJANI, Date: 2023-06-16 Tentative Ruling
MOTION – SET ASIDE DEFAULT
Moving Party (MP): Respondent Kaveh Lahijani
Responding Party (RP): Petitioner Larissa Lahijani
The moving party seeks to vacate an order from 1/10/22. Specifically, Respondent seeks to declare the order void because of lack of service or notice to the joined parties.
The Court of Appeal looked at the default judgment against the Claimant Farzaneh Rashidi. The judgment was affirmed and the court found valid service and entry of the default against the joined parties and the court does have jurisdiction to make orders. Now, Respondent is still seeking to set aside the default and argues that this court still does not have jurisdiction.
Petitioner argues that “The law of the case doctrine states that when, in deciding an appeal, an appellate court ‘states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal.’ ” Kowis v. Howard (1992) 3 Cal. 4th 888, 892-893.
The law-of-the-case doctrine is designed to prevent repetitive litigation of the same issue in a single criminal or civil case. People v. Boyer (2006) 38 Cal.4th 412, 441, citing People v. Whitt (1990) 51 Cal.3d 620, 638, and People v. Shuey (1975) 13 Cal.3d 835, 841. Under the law-of-the-case doctrine, the determination by an appellate court of an issue of law is conclusive in subsequent proceedings in the same case. People v. Boyer, supra (2006), at 441.
Review of the Opinion filed on December 21, 2022, which expressly affirmed the Default Judgment, reveals that the exact same issues presented on this RFO as to the Default judgment, i.e., lack of subject matter and personal jurisdiction, were presented by Rashidi and decided against her on appeal.
In opposition, Respondent continues to argue that lack of jurisdiction and fraud despite the appellate ruling. On July 21, 2017 Petitioner filed a Joinder Complaint in this court. On May 3, 2021 this court entered a default, and on January10, 2022 a judgment was entered against Farzaneh Rashidi, Little Man Inc. SA, Frenchy’s 44 S.A. and Kaveh Lahijani.
This moving PARTY, Pro Per, Kaveh Lahijani is now asking for a set aside of the January 10, 2022 VOID order, that default judgment, if entered, AND MINUTE ORDER as well as an order quashing service of the Summons for lack of jurisdiction.
The court has issued opinion about the property and as discussed, this could be considered a reconsideration of the court’s prior rulings. An “application” for reconsideration requires a noticed motion set for hearing on the usual minimum notice prescribed by CCP § 1005(b) . The motion ordinarily must be heard by the same judge or court that made the order for which reconsideration is sought. [See CCP § 1008(a); Anne H. v. Michael B. (2016) 1 CA5th 488, 499, 204 CR3d 495, 504—although trial court generally has authority to reconsider and change its own interim rulings, another trial court's power to vacate those rulings is limited.
The motion must be made within 10 days after service upon the party seeking reconsideration of written notice of entry of the order. [CCP § 1008(a)]
Supporting declaration: The motion must be accompanied by an affidavit (or declaration under penalty of perjury, CCP § 2015.5) stating all of the following:
· What application (motion) was made before;
· When the prior application (motion) was made and to what judge;
· What order or decisions were made; and
· What new or different facts, circumstances or law are claimed to be shown. [CCP § 1008(a)]
“Diligence” explanation: The supporting declaration must also set forth a satisfactory explanation for the failure to present the alleged “new” or “different” evidence or law earlier (i.e., § 1008 relief is also conditioned on a showing of diligence). [New York Times Co. v. Sup.Ct. (Wall Street Network, Ltd.) (2005) 135 CA4th 206, 208, 37 CR3d 338, 340; see Yolo County Dept. of Child Support Services v. Myers (2016) 248 CA4th 42, 50, 205 CR3d 96, 103—default affirmed where movant failed to provide explanation for failing to produce documentary evidence earlier; Marriage of Drake (1997) 53 CA4th 1139, 1168, 62 CR2d 466, 485 (different facts); Baldwin v. Home Sav. of America (1997) 59 CA4th 1192, 1200, 69 CR2d 592, 598 (different law)].
Respondent has failed to comply with the plain language of CCP 1005 and CCP 1008.
In addition, Respondent has no standing to challenge the validity of the Order, because he not suffered injury and refused to participate in the hearings. Moreover, because he has repeatedly denied ownership of any shares or properties affected by the Order, he cannot now claim ownership of Little French Key (“LFK”) or any shares or properties,
Also, based on judicial estoppel, he cannot now take the opposite position by claiming to have suffered injury as a result of the Order that granted Petitioner access to and the right to manage LFK.
It is further argued that he has no standing to challenge the validity of the Default Judgment, because it was entered against his mother and not against him. Because Respondent refused to participate in the multiple evidentiary hearings that resulted in the entry of the Default Judgment and Order, he cannot now assert that there was fraud, surprise, mistake or other improprieties in the evidence and conduct of those hearings, that would allow this Court to vacate either the Default Judgment or the Order based on CCP § 473.
TENTATIVE RULING:
The court therefore DENIES Petitioner’s Motion to set aside or vacate the default judgment.
Respondent is ordered to give notice.