Judge: John J. Kralik, Case: 22STCV18171, Date: 2022-12-16 Tentative Ruling

Case Number: 22STCV18171    Hearing Date: December 16, 2022    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.   Allegations

Plaintiff Arthur Tsatryan (“Plaintiff,” as self-represented litigant) alleges that he and Defendant Polina Tsatryan (“Ms. Tsatryan”) were married on August 5, 1987.  Plaintiff and Ms. Tsatryan purchased community property in the city of Tarzana in 1999.  Plaintiff alleges that he filed a Petition for Dissolution of Marriage on September 23, 2009 in LASC Case No. BD512645 (“Dissolution Action”).  Plaintiff alleges that Ms. Tsatryan engaged in actions to bankrupt him and that she did not make mortgage payments on the Tarzana property, did not pay legal fees, etc.  Plaintiff alleges that Defendants Steven Fernandez (“Mr. Fernandez”), Maya Shulman (“Ms. Shulman”), and S. David Kozich (“Mr. Kozich”) were Ms. Tsatryan’s former attorneys in the Dissolution Action.

Plaintiff alleges judgment was entered in the Dissolution Action on May 21, 2015.  He alleges that since September 2015, Ms. Tsatryan has litigated a procedurally improper complaint in the Family Law Court.  He alleges that Ms. Tsatryan, with the aid of Mr. Fernandez, filed legal documents against him on March 11, 2016 and June 9, 2016.  (Compl., ¶¶32, 36.)  He also alleges Ms. Tsatryan and Mr. Fernandez accused Plaintiff and his family members of fraud.  (Id., ¶38.)  On June 7, 2017, Ms. Tsatryan filed a substitution of attorney, substituting Ms. Shulman as her attorney.  (Id., ¶39.)  He alleges that Ms. Tsatryan and Ms. Shulman engaged in fraudulent acts in the Dissolution Action.  (Id., ¶¶40-45.)  Ms. Shulman was relieved as counsel for Ms. Tsatryan on November 3, 2017.  (Id., ¶58.)  On November 28, 2017, Mr. Kozich substituted in as Ms. Tsatryan’s counsel and Plaintiff alleges that Mr. Kozich engaged in unlawful acts.  (Id., ¶¶60-61.) 

The complaint, filed June 3, 2022, alleges causes of action for: (1) fraud against Ms. Tsatryan, Ms. Shulman, and Mr. Kozich; (2) defamation against Ms. Tsatryan, Ms. Shulman, Mr. Kozich, and Mr. Fernandez; (3) malicious prosecution against Ms. Tsatryan, Ms. Shulman, Mr. Kozich, and Mr. Fernandez; (4) conspiracy against Ms. Tsatryan, Ms. Shulman, Mr. Kozich, and Mr. Fernandez; (5) IIED against Ms. Tsatryan, Ms. Shulman, Mr. Kozich, and Mr. Fernandez; and (6) punitive damages against Ms. Tsatryan, Ms. Shulman, Mr. Kozich, and Mr. Fernandez.

On August 30, 2022, the default of Defendant Polina Tsatryan was entered.

B.    Motion on Calendar

On October 18, 2022, Polina Tsatryan (“Ms. Tsatryan”) filed an ex parte application to set aside the request of entry of default filed by Plaintiff, pursuant to CCP § 473(b). 

On October 20, 2022, the ex parte matter came for hearing, which both Plaintiff and Ms. Tsatryan attended.  The Court set the matter for hearing on December 16, 2022 and allowed Ms. Tsatryan to use the ex parte papers as the moving papers. 

The Court is not in receipt of an opposition brief.

LEGAL STANDARD

Under the discretionary prong of CCP §473(b), “[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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” 

DISCUSSION

         Ms. Tsatryan moves to set aside the default on the basis of her mistake, inadvertence, surprise, or excusable neglect pursuant to the discretionary prong of CCP § 473(b).  (Ms. Tsatryan is not represented by counsel and is thus not moving pursuant to the mandatory prong.)

         Ms. Tsatryan’s default was entered on August 30, 2022.  This motion was filed on October 18, 2022.  As such, the motion is timely. 

         Ms. Tsatryan argues that Plaintiff failed to give this Court a Notice of Related Cases with the March 20, 2018 complaint that he filed in Department 78 of the Stanley Mosk Courthouse (Case No. BC680322).  (Mot., Ex. 1.)  She argues that both cases involve the same parties and that the BC680322 is still pending.  She believes that since the cases are related, but pending in different courts, the cases should be consolidated into the same courtroom.

         In her declaration, Ms. Tsatryan states that she is the defendant in this case and the BC680322 case.  (P. Tsatryan Decl., 1.)  She states that she discovered there was a default against her at the October 14, 2022 hearing.  (Id.)  She states that when she found out about the default, she filed this motion within a reasonable time within the statutory period.  (Id., ¶2.)

         Ms. Tsatryan has not stated why vacating the default is appropriate pursuant to section 473(b).  She has not stated why vacating the default is appropriate based on her mistake, inadvertence, surprise, or excusable neglect.  For example, after receiving the summons and complaint in this action, did she misplace the documents or mis-calendar the date she was supposed to file a responsive pleading?  Was she properly served with the summons and complaint? Or is there some other excusable neglect that would warrant vacating the default?

         At most, Ms. Tsatryan argues that Plaintiff did not file a Notice of Related Cases, but this is not a basis to set aside the default.  Further, to the extent that Ms. Tsatryan argues that this case should be related/consolidated with the BC680322 case, this is not an appropriate request in a motion to set aside the default.  Rather, a request to relate/consolidate the cases would better be raised in the earlier-filed courtroom.

         For these reasons, the motion to set aside the default is denied.  However, the Court will deny the motion without prejudice so that Ms. Tsatryan may bring this motion again properly addressing the grounds stated in section 473(b).

CONCLUSION AND ORDER  

Defendant Polina Tsatryan’s motion to set aside the default is denied without prejudice.  

Defendant shall provide notice of this order.