Judge Kevin C. Brazile, Case 20STCV43794 2023-03-14 Tentative Ruling

TENTATIVE RULINGS

SUBMISSION INSTRUCTIONS

STANLEY MOSK COURTHOUSE, DEPARTMENT 20 - JUDGE KEVIN C. BRAZILE

Counsel may submit on the tentative ruling without appearing at the hearing by emailing Dept. 20 as soon as possible after reviewing a posted tentative. Though the Court makes every effort to post tentatives at least a day ahead of the hearing, this cannot be guaranteed due to the volume of motions. The email address is smcdept20@lacourt.org. In the subject line include:

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Moving Party: Defendants Golcheh Family Trust Dated August 3, 2016, Morad Golcheh, and Nahid Golcheh

Ruling: The Motion to Set Aside Default is DENIED as to Defendant Golcheh Family Trust Dated August 3, 2016, and GRANTED as to Defendants Morad Golcheh, and Nahid Golcheh.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

On November 13, 2020, Plaintiff Rafi Rafiee (“Plaintiff”) filed a complaint against Defendants Daniel Dangoor; Iman Eshaghyan; Mina Eshaghyan for breach of contract and fraud.

On October 15, 2021, Plaintiff filed the operative Second Amended Complaint (“SAC”) which included the following additional Defendants RE BROKER GROUP, INC. (previously Doe 11); Re Broker Group Inc. (previously Doe 12); Cold Well Banker Realty, Golcheh Family Trust Dated August 3, 2016, Morad Golcheh, Nahid Golcheh, Does 1 to 10, and 13 to 20 inclusive.

On August 19, 2022, default was entered against Defendants Morad Golcheh and Nahid Golcheh.

On February 14, 2023, Defendants Golcheh Family Trust Dated August 3, 2016, Morad Golcheh, and Nahid Golcheh filed this motion for relief from default.

Defendants move pursuant to CCP §§ 473, and 474 to set aside the default judgment.

The Court notes that Defendant Golcheh Family Trust Dated August 3, 2016 is not in default, and thus the motion is DENIED as to it.

Defendants argue that they were not properly named as Defendants, and even if they were the defaults should be set aside based on CCP § 473(b). The Court agrees that Defendants were not properly added to the action. While Plaintiff was granted leave to amend the Complaint and FAC after demurrers, it was not to add new parties. (See 6/2/21 and 9/21/21 Minute Orders.) “A person or entity may become a party defendant only in two ways: by being named as a defendant, or by being properly named and served as a fictitiously named defendant pursuant to [Code of Civil Procedure] section 474.” (Kerr-McGee Chemical Corporation v. Superior Court (1984) 160 Cal.App.3d 594, 597.) Here, Plaintiff did not add the parties as a fictitiously named defendant as they were not substituted as a Doe Defendant like others expressly were. Plaintiff also was not provided leave to name them as defendants. (See, e.g., People ex rel. Department of Public Works v. Clausen (1967) 248 Cal.App.2d 770, 785-786.) The Court only granted leave to amend certain causes of action. (See 6/2/21 and 9/21/21 Minute Orders.)

While this is a technicality and Plaintiff could have amended the complaint by way of a doe substitution form, Plaintiff did not properly add them as Defendants. Accordingly, the defaults against Defendants are void pursuant to CCP § 473(d). The motion is GRANTED.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.