Judge: Michael E. Whitaker, Case: 20STCV15431, Date: 2024-07-31 Tentative Ruling
Case Number: 20STCV15431 Hearing Date: July 31, 2024 Dept: 207
TENTATIVE RULING
DEPARTMENT 207
HEARING DATE July 31, 2024
CASE NUMBER 20STCV15431
MOTION Motion
to Set Aside Entry of Default and Default Judgment
MOVING PARTY Defendant Dr.
Kourosh Parsapour
OPPOSING PARTY Plaintiff Sara
Correa
MOTION
On April 21, 2020, Plaintiff Sara Correa (“Plaintiff”) filed suit
against Defendants Kourosh Parsapour (“Parsapour”); Kourosh Parsapour, MD
(“Parsapour MD”); Weedrecs; and The Mooring Townhomes Association, Inc.
(“Mooring”) alleging ten causes of action for (1) sexual battery; (2)
intentional infliction of emotional distress; (3) negligence per se; (4)
negligence; (5) negligent infliction of emotional distress; (6) fraud by
intentional concealment; (7) fraud by intentional misrepresentation; (8)
domestic violence; (9) false imprisonment; and (10) premises liability,
alleging Parsapour knowingly infected Plaintiff with herpes and abused his
position as a medical doctor to conceal that fact from Plaintiff, and then
verbally and domestically abused Plaintiff.
Parsapour was served with the complaint via personal service on August
26, 2020. Default was entered against
Parsapour on September 28, 2020.
Plaintiff’s request for default judgment against Parsapour was entered
on May 5, 2023.
Parsapour now moves to set aside the default and default
judgment. Plaintiff opposes the motion
and Parsapour replies.
ANALYSIS
I.
NON-EQUITABLE RELIEF
Code of Civil procedure section 473
“includes a discretionary provision, which applies permissively, and a mandatory
provision, which applies as of right.” (Minick v. City of Petaluma
(2016) 3 Cal.App.5th 15, 25 (hereafter Minick).) “Section 473 is a remedial statute to be
“applied liberally” in favor of relief if the opposing party will not suffer prejudice. Because the law strongly favors trial and
disposition on the merits, any doubts in applying section 473 must be resolved
in favor of the party seeking relief from default. Unless inexcusable neglect is clear, the
policy favoring trial on the merits prevails.”
(Minick, supra, 3 Cal.App.5th at p. 24 [cleaned up].)
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 (hereafter Rappleyea)
[“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 Ca.App.4th 712, 721 [motion
for relief under section 473 must be brought “within a reasonable time, in no
case exceeding six months”]). “The
six-month limit is mandatory; a court has no authority to grant relief under
section 473, subdivision (b), unless an application is made within the
six-month period.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340,
citations omitted.)
A. DISCRETIONARY RELIEF
Per Code of Civil Procedure
section 473, subdivision (b), 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.”
B.
MANDATORY
RELIEF
Notwithstanding any other requirements of this
section, the court shall, whenever an application for relief is made no more
than six months after entry of judgment, is in proper form, and is accompanied
by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any
(1) resulting default entered by the clerk against his or her client, and which
will result in entry of a default judgment, or (2) resulting default judgment
or dismissal entered against his or her client, 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).) “In considering whether the trial court
properly denied relief under section 473(b), the first question is the
sufficiency of defendants' showing of attorney fault, if believed, to trigger
the mandatory relief provisions of that statute.” (Standard Microsystems Corp. v. Winbond
Electronics Corp. (2009) 179 Cal.App.4th 868, 896, disapproved on other
grounds by Even Zohar Construction & Remodeling, Inc. v. Bellaire
Townhouses, LLC (2015) 61 Cal.4th 830 (hereafter Standard).) “Under section 473(b), a party is entitled to
relief from a default and resulting judgment whenever, on timely application
for relief, his attorney ‘attest[s] to his or her mistake, inadvertence,
surprise, or neglect’ in connection with the default or the judgment.” (Ibid.)
Parsapour contends that he mistakenly believed he was represented by
counsel, who was handling the case and filing a responsive pleading on
Parsapour’s behalf, when in fact, his prior counsel abandoned the case, and
failed to respond to the complaint or otherwise communicate with
Parsapour.
Here, the judgment was entered on May 5, 2023. But Parsapour did not move to set aside the
default judgment until July 8, 2024 which is more than 13 months after the
judgment was entered. As such, the
Court determines that Parsapour’s motion is untimely, and as such, he is not entitled
to either discretionary or mandatory relief under Section 473.
II.
EQUITABLE RELIEF
“Apart from any statute, courts have the inherent authority to vacate
a default and default judgment on equitable grounds such as extrinsic fraud or
extrinsic mistake. “Extrinsic fraud usually arises when a party is denied a
fair adversary hearing because he has been ‘deliberately kept in ignorance of
the action or proceeding, or in some other way fraudulently prevented from
presenting his claim or defense.’ ” In contrast, the term “extrinsic mistake”
is “broadly applied when circumstances extrinsic to the litigation have
unfairly cost a party a hearing on the merits. [Citations.] ‘Extrinsic mistake
is found when [among other things] ... a mistake led a court to do what it
never intended....’ ” ” (Bae v. T.D. Service Co. (2016) 245
Cal.App.4th 89, 97-98, citations omitted (hereafter Bae); accord Rappleyea,
supra, 8 Cal.App.4th at p. 981 [“After six months from entry of default,
a trial court may still vacate a default on equitable grounds even if statutory
relief is unavailable”].)
Further, the Bae court held that “A party may seek equitable
relief from a default and default judgment by filing a motion in the pertinent
action or initiating an independent action. “[A] motion brought to do so may be
made on such ground even though the statutory period [for relief under Code of
Civil Procedure section 473, subdivision (b) ] has run.” Because a motion for
equitable relief is “direct,” rather than “collateral,” extrinsic fraud or
mistake may be demonstrated by evidence not included in the judgment roll or
record relating to the judgment.” (Bae, supra, at p. 98,
citations omitted.)
“[R]elief under the doctrine of extrinsic mistake is subject to a
“stringent three-part formula. . . . “ ‘[t]o set aside a [default]
judgment based upon extrinsic mistake one must satisfy three elements. First,
the defaulted party must demonstrate that it has a meritorious case. Second [
], the party seeking to set aside the default must articulate a satisfactory
excuse for not presenting a defense to the original action. Last[ ], the moving party must demonstrate
diligence in seeking to set aside the default once ... discovered.’ ” ” (Bae,
supra, at p. 100, citations omitted; see also Rappleyea, supra,
245 Cal.App.4th at p. 982 [equitable relief should be granted in only
exceptional circumstances].)
Thus, the Court will address Parsapour’s claim under the three-prong
test.
Has Defendant demonstrated that he has a meritorious defense?
The short answer is No. Parsapour contends he has meritorious defenses
because he does not have herpes, it is Plaintiff and not Defendant who was
repeatedly arrested for domestic violence, and Plaintiff’s timeline regarding
her exposure and the onset of her symptoms is shorter than the typical
incubation period.
In support, Parsapour declares the following:
3. I engaged in a brief romantic relationship
with Plaintiff Sara Correa for several months in 2018. The relationship ended
when Correa physically assaulted me, for which she was arrested on October 13,
2018. After this incident, she continued to harass and stalk me and was
arrested a second time for trespass and assault on April 25, 2019. She pleaded
no contest to the charges on September 19, 2019, and was sentenced to 45 days
of community service, completion of a 52-week domestic violence program, and
three years of probation. (A true and correct copy of the Reporter’s Transcript
of Proceedings (Case No. 8TR06443) is attached as Exhibit A.)
4. To distance myself from Correa, I relocated
from Los Angeles to Orange County. Despite my relocation and the fact that I
had been granted a no-contact restraining order against Correa (Criminal
Protective Orders issued November 20, 2018, and March 4, 2019, are attached
hereto as Exhibit B), she continued to harass and stalk me and my new spouse,
Silvana Carolina Angulo.
[…]
20. Ultimately, Correa was found guilty of
violating her probation and restraining order and was sentenced a second time.
[…]
The affidavit of Plaintiff Correa falsely claims
that I exposed her to genital herpes. First, we used condoms during all sexual
encounters. Second, as a medical doctor, I know that it is highly unlikely for
any initial exposure to the herpes virus to result in the initial primary
outbreak in 72 hours as alleged. The incubation period is about seven days.
More importantly, the primary infection is preceded by prodromal symptoms
(moderate flu-like symptoms) for about a week. Third, and most importantly, I
do not have genital herpes.
(Parsapour
Decl. ¶¶ 3-4; 20; 33.)
Although Parsapour denies having genital herpes, Plaintiff both
alleges and declares that Parsapour has oral herpes and transmitted the disease
to her genitals via oral sex. (Parsapour
Decl. at p. 1 [“Defendant was infected with oral herpes and genital herpes”];
Complaint at p. 11 [“Defendant breached that duty of care when he engaged in
sexual intercourse, including oral sex, with Plaintiff”].)
Regarding the incubation period for
herpes, although Parsapour is a medical doctor, Parsapour has not provided any
of the requisite foundation regarding his training and experience to provide an
expert opinion about the incubation period for herpes.
Regarding Plaintiff’s history of
domestic violence, that Plaintiff has a history of domestic violence does not
necessarily mean that Plaintiff did not also commit domestic violence against
Plaintiff or others. In fact, the text
message thread between Parsapour and attorney Barton indicates that there was a
restraining order issued against Parsapour.
(See Parsapour Decl. ¶ 25 and Ex. L [“but I don’t want to go if they see
a restraining order on file and they arrest me on the spot.”]) Further, attorney Barton indicates in another
text message thread, “I deleted the [recording] where [Plaintiff] says that you
caused her to hit her head (during the last incident)[.]” (Ex. E to Parsapour Decl.)
Parsapour also contends that his
wife, Silvana Carolina Angulo, recanted the September 2020 affidavit in which
Ms. Angulo accuses Parsapour of domestic violence. (Parsapour Decl. at ¶ 22-23 and Exs. J-K.) Even without the Angulo affidavit, in
connection with the default judgment, Plaintiff provided her own affidavit,
medical history, and photographic evidence of her injuries.
Therefore, Parsapour has not met his
burden of demonstrating meritorious defenses to the underlying action.
Has Defendant articulated a satisfactory excuse for not seeking
timely relief from default? The short answer is No.
Plaintiff explains that he was under the impression that his attorney Barton,
who represented him in various domestic violence restraining order matters
involving both Plaintiff and his wife, Ms. Angulo, was simply handling the
civil suit as well, and since he didn’t hear anything else from attorney
Barton, he assumed the civil suit had resolved.
In support, Parsapour provides some text message conversations between
himself and attorney Barton in which they primarily discuss the other matters,
but do touch briefly on the civil suit.
The last of that conversation indicates attorney Barton “Just sent you
the complaint from Sara btw. I just
checked and it hasn’t registered receiving the remainder of the payment
yet. Lmk if you want me to try to run
it” to which Parsapour responded, “Sorry I was at dinner. Not an issue with the invoices. I’ve run my own practice and I feel you. Let me try again…my finances have been in a
state of disarray since Silvana[.]” (Ex.
E to Parsapour Decl.)
On October 14, attorney Barton emailed Parsapour “This is a reminder
that a responsive pleading (answer, cross-complaint, demurrer, etc.) is due in
this case” to which Parsapour responded via text message, discussing
potentially filing a criminal report against Plaintiff, and obtaining
statements from Angulo recanting the affidavit used in connection with the
restraining order filed against Parsapour.
(Ex. L to Parsapour Decl.)
Thus, despite being aware of the civil complaint and the responsive
pleading deadline, Parsapour did nothing to inquire about the case until
discovering the judgment in July 2023:
29. Hearing nothing further from Attorney Barton,
I assumed the civil case had been resolved. I have never received any email or
regular mail notification of any document filed in this case.
30. In or around July 2023, I discovered that as
a result of Attorney Barton’s failure to respond to the complaint, I faced a
default judgment exceeding $22,000,000. I frantically searched for new counsel
to file a motion to set aside the default judgment but had no money to pay for
a new attorney. I contacted multiple attorneys but was rejected as I could not
pay an initial retainer.
(Parsapour
Decl. ¶¶ 29-30.)
As such, Parsapour has not
demonstrated a satisfactory excuse for not seeking timely relief from default.
Has Defendant demonstrated diligence in seeking relief from the
default once discovered? The short answer is No. Similar to
the second prong, Parsapour admits he discovered the default judgment against
him in July 2023, but did not file the instant motion until a year later, on
July 8, 2024. Parsapour’s explanation
for the delay is that he “had no money to pay for a new attorney.” But Parsapour does not explain why he did not
file a request for relief from default in pro per. As such, Parsapour does not adequately
demonstrate diligence in seeking relief, once the default judgment was
discovered.
As the California Supreme Court in Rappleyea has noted,
equitable relief should only be granted in exceptional circumstances.
Here, Parsapour has failed to offer an adequate explanation as to why he did
not move to set aside default earlier. The Court does not find Parsapour’s
sequence of events to add up especially to the equitable relief sought. Thus, Parsapour
has failed to demonstrate that it is entitled to such relief under Rappleyea
and Bae. Specifically, Parsapour has not met all 3 prongs of
the applicable “extrinsic mistake” test.
CONCLUSION
For the foregoing reasons, the Court
denies Defendant’s motion to set aside the default judgment.
The Clerk of the Court shall provide
notice of the Court’s ruling.
DATED:
July 31, 2024 ___________________________
Michael E. Whitaker
Judge
of the Superior Court