Superior Court of California

County of Los Angeles

North Central District

Department B

ARTHUR TSATRYAN,

Plaintiff,

POLINA TSATRYAN, et al.,

Defendants.

Case No.: 22STCV18171

Hearing Date: April 7, 2023

[TENTATIVE] ORDER RE:

MOTION TO SET ASIDE REQUEST FOR ENTRY OF DEFAULT

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. Relevant Background and 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. On December 16, 2022, the Court denied without prejudice Ms. Tsatryan’s motion to set aside the default. The Court noted in its prior or der that while Ms. Tsatryan brought the motion pursuant to CCP § 473(b), she only argued that Plaintiff failed to give this Court a notice of related cases, but she did not address how she was seeking relief under section 473(b) (mistake, inadvertence, surprise, or excusable neglect).

On March 8, 2023, Ms. Tsatryan filed this second motion to set aside the request for entry of default. 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 March 8, 2023. As such, the motion was not timely filed within 6 months of the entry of default. To be timely, Ms. Tsatryan must have filed the motion within 182 days of the entry of default (i.e., 6 months). (See Davis v. Thayer (1980) 113 Cal.App.3d 892, 903 [concluding that 6 months is the equivalent of half a year, or under Gov’t Code §6803, 182 days for the purposes of CCP §473(b)].) However, she filed her motion on the 190^th day, which is 8 days late. As stated by the Court of Appeal (2nd District) in Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 345:

There is no indication in the language of section 473, subdivision (b), that the Legislature intended to authorize a court to relieve a party from the failure to timely apply for relief. The statute states that an application for discretionary relief “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken,” and that that an application for mandatory relief must be made “no more than six months after entry of judgment.” (Ibid., italics added.) This language does not suggest that an exception should exist based on mistake, inadvertence, surprise, or excusable neglect or an attorney's affidavit of fault. Moreover, it appears unlikely that the Legislature would have intended to allow the use of section 473, subdivision (b), to excuse a party's noncompliance with that very statute without expressly stating so. Finally, to allow a court to grant relief from the failure to timely move for relief would effectively extend the outside time limit on an application for relief under the statute from six months to one year. It is unlikely that the Legislature intended to allow such an extension. Accordingly, we hold that a court has no authority under section 473, subdivision (b), to excuse a party's noncompliance with the six-month time limit.

(Arambula, supra, 128 Cal.App.4th at 345.) As such, the motion was not timely filed and must be denied for procedural reasons. The Court notes that Ms. Tsatryan had the benefit of the Court’s prior ruling on December 16, 2022 and had notice that motions pursuant to CCP § 473(b) must be brought within 6 months of the entry of default. (The Court’s prior order and current order include the “LEGAL STANDARD” section, which quoted the relevant section of section 473(b), which included the time period to bring these types of motions.)

As for the substantive merits, Ms. Tsatryan argues that she was under a mistake of law and fact because she did not know her duty to respond and that in the process of answer, she found a lot of facts in Plaintiff’s complaint were not true. (P. Tsatryan Decl., ¶2.)

“A ‘mistake’ justifying relief may be either a mistake of fact or a mistake of law. ‘A mistake of fact exists when a person understands the facts to be other than they are; ...’” (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1368.) A mistake as to the law does not require relief from default as a matter of law. (Anderson v. Sherman (1981) 125 Cal.App.3d 228, 238.) “The issue of which mistakes of law constitute excusable neglect presents a fact question….” (Id.) The determining factors are: (1) “the reasonableness of the misconception” and (2) “the justifiability of lack of determination of the correct law.” (Id.) “Although an honest mistake of law is a valid ground for relief where a problem is complex and debatable, ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief. (Citations.)” (Id.) “Although an honest mistake of law is a valid ground for relief where a problem is complex and debatable, ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief. (Citations.)” (Id.)

Here, Ms. Tsatryan has not stated grounds upon which there would be relief for a mistake of fact. She has not stated what facts were presented that she believed were other than they were. Rather, she states that she became aware of the default on October 14, 2022. Whether she agrees or disagrees with the allegations of the complaint does not constitute a mistake of fact as there are other procedural mechanisms that can be used to disagree with the facts (i.e., answer, demurrer, etc.). Finally, Ms. Tsatryan has not shown that there was a mistake of law as she has only stated that she was ignorant of the legal procedure, as opposed to a lack of determination of the correct law.

Based on procedural and substantive grounds, the motion is denied.

CONCLUSION AND ORDER

Defendant Polina Tsatryan’s motion to set aside the default is denied.

Defendant shall provide notice of this order.