Judge: Mark H. Epstein, Case: SC126845, Date: 2022-12-27 Tentative Ruling

Case Number: SC126845    Hearing Date: December 27, 2022    Dept: R

What a mess.  Despite having been in default for six years, plaintiff only entered Farzaneh’s default on the eve of trial. 

Farzaneh submitted a declaration riddled with statements that turned out not to be true in support of his request to be relieved of default, only to have is recollection “refreshed” by plaintiff’s detailed submission.

Certain aspects of the Farzaneh declaration and the Riley declaration are not consistent.  Given the level of detail in the Riley declaration and defendants’ track record regarding accuracy of representations to the court, the court is inclined to credit the Riley declaration over the Farzaneh declaration.  To be candid, it is hard to believe that Farzaneh had any reasonable basis to believe he was being represented by Mr. Vivoli, and Mr. Vivoli certainly has said nothing to indicate that Farzaneh could have harbored any such reasonable belief (which he would be ethically obligated to do were it true).  Further, contrary to what the court believed at the last hearing, it appears that Farzaneh was served with materials until February 2020—and in none of them was he listed as being represented by Mr. Vivoli.  Farzaneh states that he just got those—including trial preparation materials—but thought nothing of it and did not notice that no one was contacting him to prepare for the trial that was (at the time) a very short time away.  The court also does not understand how Farzaneh could possibly believe that he was unrepresented and that he was represented by Mr. Vivoli at the same time.  Nor can the court understand how Farzaneh could believe that he could agree to cooperate with plaintiff and at the same time by represented by the lawyer who represented all of the other defendants.  Farzaneh explains this by declaring that he is a neophyte in litigation, unschooled in the ways of lawsuits.  The court has no doubt that Farzaneh is not himself a lawyer.  But he has been involved in enough suits to have at least a common understanding of the law.  And litigants far less sophisticated than he claims to be know more than he claims to know.  In short, to the extent that this is a credibility contest, the court does not credit Farzaneh’s declarations.

The court is also concerned that if Farzaneh is relieved from default, the trial date may have to be continued, and for a not insignificant amount of time.  He has not been deposed; he has taken no discovery; no one has obtained his documents; he has designated no experts.  This case is already the oldest one on the court’s docket.  The prejudice to plaintiffs is palpable.

Yet plaintiffs cannot escape at least some of the blame.  Plaintiffs’ counsel claims that he thought he had placed Farzaneh in default a long time ago—six years—but apparently the attorney tasked with doing so failed to do so.  And in all of that time, plaintiffs never actually confirmed the fact or questioned why Farzaneh was being served with materials in 2019 and 2020, years after supposedly being in default.  Farzaneh further claims not to have received any notice of default even after plaintiff finally got around to having it entered (he claims to have learned about it when Mr. Vivoli called him).  Apparently, plaintiff made no effort to contact Farzaneh before belatedly entering his default half a decade after the fact.  And defendants fell down on the job as well.  Having served Farzaneh through early 2020 with materials, defendants simply stopped, even though Farzaneh had still not been placed in default.

The court will discuss this with the parties as to the various options, which could include: (1) granting the application and relieving Farzaneh of default if he can commit to trial in a very short period of time; (2) granting the application and allowing Farzaneh to complete discovery; (3) denying the application; (4) having plaintiffs simply dismiss Farzaneh without prejudice to any of their claims against any of the remaining defendants in return for a cost waiver and malicious prosecution waiver; (5) any other possibilities.

No one has covered themselves in glory here.  Plaintiffs contend that defendants are really orchestrating the whole thing to ensure that Farzaneh be able to testify, noting that Farzaneh’s current counsel is Mr. Vivoli’s former colleague.  But even assuming a more benign explanation, there is no good faith reason the court can think of in which anyone did what was supposed to be done and we would be in this position.