Judge Kerry Bensinger, Case Number: 22STCV11246, Date: 2024-08-06 Tentative Ruling

On April 4, 2022, Plaintiff, Emil Hakim, filed a Complaint against Defendant, Ehab Atallah, arising from the parties’ written agreements for Defendant to purchase Plaintiff’s properties. Plaintiff alleges that Defendant engaged in an elaborate scheme to defraud Plaintiff of $6,800,000. Pursuant to the forum selection clause in the agreements, Plaintiff’s claims also proceeded in arbitration in Egypt.

On April 27, 2022, Defendant filed a Motion to Dismiss for Forum Non Conveniens (“Motion to Dismiss”). The court continued the Motion to Dismiss on several occasions to allow for the arbitration proceedings in Egypt to be completed. By mid-2023, the arbitration proceedings had concluded in Defendant’s favor. Plaintiff appealed the arbitral awards, which the Court of Appeal in Egypt rejected.

On September 27, 2023, this court granted Defendant’s Motion to Dismiss. The action was dismissed on October 6, 2023.

Thereafter, on February 13, 2024, Defendant filed a Petition to Confirm the Foreign Arbitration Awards Pursuant to 9 U.S.C. § 207 in Case No. 24STCP0447. The motion was heard on May 3, 2024 and taken under submission. On May 6, 2024, the court (Fruin, J.) in Case No. 24STCP0447 issued its final order granting the Petition and entered judgment in Defendant’s favor. The court served notice of the ruling on May 16, 2024. Plaintiff then filed a motion for reconsideration of the Judge Fruin’s May 6, 2024, order. That motion is scheduled for hearing on August 12, 2024.

On March 27, 2024, Plaintiff filed a Motion to Set Aside this court’s September 27, 2023 order under Code of Civil Procedure section 473, subdivision (b).

Code of Civil Procedure section 473, subdivision (b) provides that a court may “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.” In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.” (Code Civ. Proc., § 473, subd. (b).)

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Cal.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”].)

Defendant requests judicial notice of eleven documents. The unopposed request is GRANTED. (Evid. Code, § 452, subds. (d)(1).)

Plaintiff seeks mandatory relief to vacate the court’s September 27, 2023 order on the following grounds: (1) Plaintiff’s counsel did not provide evidence in advance of the September 27, 2023 hearing for Defendant’s motion to dismiss showing that the arbitral proceedings had not been completed, (2) the failure to provide evidence of ongoing arbitration in Egypt supported the court’s September 27, 2023 order granting Defendant’s motion to dismiss, (3) the failure was due to Plaintiff’s counsel’s mistake or excusable neglect, and (4) this motion was timely filed within 6 months of the order. (See Declaration of Thomas M. Bundy.) For these reasons, Plaintiff argues the court must set aside the September 27, 2023 order.

In opposition, Defendant argues the motion should be denied because Plaintiff has not offered evidence of Plaintiff’s counsel’s mistake and further, the court considered Plaintiff’s argument that the arbitration proceedings were ongoing at oral argument and still dismissed the action.

The court is inclined to deny Plaintiff’s motion for three reasons. First, the court considered Plaintiff’s argument at the September 27, 2023 hearing, that the arbitration was ongoing. (See Declaration of Daniel L. Germaine, Ex. L, pp. 11-12.) The court adopted its tentative ruling which found, based on Defendant’s supplemental declarations, that the arbitration proceedings were completed. In essence, Plaintiff seeks reconsideration of the court’s September 27, 2023. However, the time for filing a motion for reconsideration has long passed. (See Code Civ. Proc., § 1008, subd. (a).)

Second, Plaintiff’s counsel does not show the court’s September 27, 2023 order was entered because of counsel’s excusable neglect or mistake. Plaintiff’s counsel states in his declaration: “I failed to file evidence that the arbitration proceedings in Egypt were not completed. That failure was excusable because by the time of the September 27, 2023, hearing, the next hearing date in Egypt had not yet been set.” (Bundy Decl., ¶ 5.) Far from describing a failure to present evidence due to mistake or neglect, Plaintiff’s counsel makes clear there was no evidence the arbitration proceedings were ongoing which could have been presented to the court at the time of the September 27, 2023 hearing.

Third, Defendant has already obtained an order from Judge Fruin in a separately filed action (Case No. 24STCP0447) confirming the arbitral awards. (See Minute Order, 5/16/24, Case No. 24STCP0447.) Therefore, it appears as though the instant motion is moot. However, given that Plaintiff’s motion for reconsideration of Judge Fruin’s order is pending resolution, the court defers its ruling on the instant matter.

Based on the foregoing, the Motion to Set Aside Order is CONTINUED to September 20, 2024 pending the court’s ruling on Plaintiff’s Motion for Reconsideration in the separately filed action Case No. 24STCP0447.

The court sets a Status Conference re: Reconsideration ruling in Case No. 24STCP0447 for September 20, 2024. The parties are to notify this court of Judge Fruin’s ruling no later than 3 court days before the hearing. If Judge Fruin denies Plaintiff’s motion for reconsideration, the court will adopt this ruling denying Plaintiff’s Motion to Set Aside Order as the final order of this court. If Judge Fruin grants Plaintiff’s motion for reconsideration, the court will discuss with the parties at the status conference whether any issues should be briefed that would affect the disposition of Plaintiff’s Motion to Set Aside Order.

The court notes that a hearing for a Motion to Compel Deposition was scheduled for August 6, 2024. There are no moving papers filed with the court. Further, it appears that the hearing was continued to this date by error. (See Nunc Pro Tunc Minute Order, 6/06/24.) Accordingly, the Motion to Compel Deposition is TAKEN OFF CALENDAR.

Kerry Bensinger

Judge of the Superior Court