Judge: Kimberly Knill, Case: 30-2021-01234386-CU-BC-CJC, Date: 2023-05-19 Tentative Ruling

Defendants’ Motion to Set Aside Default

The Motion to Set Aside Default of Defendants Kambiz Bahkshiyar, Paul Christopher Vanides, and Club Motorcars, LLC, is GRANTED, pursuant to Code of Civil Procedure section 473, subdivision (b).

There is conflicting evidence whether Defendant Kambiz Bahkshiyar was served by Lorena Ferreira at Starbucks.  Ferreira is a friend of Plaintiff, Gail Haddad, not a registered process server, so there is no presumption of proper service under Evidence Code section 647.

Service as to the remaining Defendants has not been directly contested, other than with respect to not knowing the extent of damages being sought.  Defendants insist because they were never properly served with a statement of damages, the entry of default is improper.  (See Code Civ. Proc., § 425.11, subd. (c).) Code of Civil Procedure section 425.11 only applies in cases involving personal injury or wrongful death.  (Id., subd. (b).)  It is inapplicable to this business litigation.

Defendants failed to attach a responsive pleading to their moving papers in violation of Code of Civil Procedure section 473, subdivision (b) [application shall be accompanied by pleading sought to be filed].) This is particularly curious given the case has been continued multiple times and the defect, which was pointed out in Plaintiffs’ opposition filed 1/26/2023, could have been remedied at any point.

Nevertheless, Defendants’ counsel requested Plaintiffs’ counsel to set aside default within 6 weeks after Defendants learned of the colossal $8,000,000+ (see ROA 49) in damages requested via default judgment (even though the Complaint nowhere specifies a figure this large).  There was no delay in seeking relief, so, on balance, Plaintiffs’ counsel should have immediately stipulated to set aside the default.  Court intervention should not have been necessary.  (See LaSalle v. Vogel (2019) 36 Cal.App.5th 127 [“Courts have had to urge counsel to turn down the heat on their litigation zeitgeist far too often.  And while the factual scenarios of these cases differ, they are all variations on a theme of incivility that the bench has been decrying for decades, with very little success.”].) Plaintiffs have not identified any prejudice if relief is granted.  (See Shapell Socal Rental Properties, LLC v. Chico’s FAS, Inc. (2022) 85 Cal.App.5th 198, 223 [“[P]laintiff does not even attempt to identify any prejudice it might suffer if the default judgment were set aside.”].)

Defendants to file a responsive pleading within 5 court days.

Defendants to give notice.