Judge: Michael E. Whitaker, Case: 23SMCV01005, Date: 2024-08-26 Tentative Ruling

Case Number: 23SMCV01005    Hearing Date: August 26, 2024    Dept: 207

TENTATIVE RULING

BACKGROUND

            On March 3, 2023, Plaintiff Law Offices of Rafi Moghadam, APC (“Moghadam Law”) filed the complaint in this action against Defendant Reza Safaie (“Safaie”) alleging three causes of action for (1) breach of guarantee; (2) fraud; and (3) common counts – services rendered, alleging Safaie failed to honor his guarantee to pay for legal services Moghadam rendered to a third party. 

            On November 13, 2023, default was entered against Safaie.  On November 28, 2023, Safaie moved to set aside the default, which the Court denied on March 26, 2024.

            In the meantime, on February 21, 2024, Safaie filed a separate lawsuit, case number 24SMCV00823, against Moghadam Law and Rafi Moghadam (“Moghadam”), alleging six causes of action for (1) legal malpractice due to professional negligence; (2) breach of fiduciary duty; (3) construct fraud; (4) intentional fraud; (5) breach of implied covenant of good faith/fair dealing; and (6) negligence, arising from the same dispute over legal services Moghadam rendered to a third party, for which Safaie (at least initially) agreed to pay.

            On May 3, 2024, Moghadam Law filed a notice of related case in this case, alerting the Court to the existence of Safaie’s lawsuit.  The Court related the cases on May 22, 2024.  (See Minute Order, May 22, 2024.)

            On June 4, 2024, in 24SMCV00823, Safaie filed a peremptory challenge to the assigned judicial officer pursuant to Code of Civil Procedure section 170.6.  On June 5, 2024, Judge Lisa K. Sepe-Wiesenfeld granted the peremptory challenge and both actions were transferred to Judge Edward B. Moreton, Jr. 

            Minute orders approving the peremptory challenge were issued in both actions, indicating “The Court reviews the Peremptory Challenge filed by Plaintiff pursuant to Code of Civil Procedure section 170.6 and finds that it was timely filed, in proper format, and is accepted.”  Subsequently, a Nunc Pro Tunc order issued in this case, changing “Plaintiff” to “Defendant” to reflect that Safaie filed the peremptory challenge.  Although the Minute Orders in both actions seem to indicate that Safaie’s peremptory challenge was filed in both actions, this Court finds the record/docket regarding 23SMCV01005 to be unclear as to whether Safaie in fact filed a peremptory challenge in said action because Safaie is in default.

            Moghadam Law now moves for reconsideration of the Court’s June 5 order granting the peremptory challenge, or in the alternative, to vacate that order.  Safaie opposes the motion and Moghadam Law replies.

LEGAL STANDARDS

Reconsideration

Under Code of Civil Procedure section 1008, subdivision (a), “[w]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make an application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.  The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”  (Code Civ. Proc., § 1008, subd. (a).)  Where the statutory requirements are met, reconsideration should be granted; upon reconsideration, however, the court may simply reaffirm its original order.  (Corns v. Miller (1986) 181 Cal.App.3d 195, 202.) 

The moving party on a motion for reconsideration “must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time[.]” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342, internal quotations & citations omitted; see New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 221 [on a motion for reconsideration, a party must present new or different facts, circumstances, or law, which the moving party “could not, with reasonable diligence, have discovered or produced” in connection with the original hearing].)

Vacate

Under Code of Civil Procedure section 473, subdivision (d), “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

ANALYSIS

“If directed to the trial of a civil cause that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 15 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 15 days after the appearance.”  (Code Civ. Proc., § 170.6.) 

Foremost, assuming Safaie filed the peremptory challenge in both actions, Safaie’s peremptory challenge filed in 23SMCV01005 is procedurally defective. 

“The entry of a default terminates a defendant's rights to take any further affirmative steps in the  litigation until either its default is set aside or a default judgment is entered.”  (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.  Further, the entry of default “[c]uts off the defendant's right to file pleadings and motions (other than a motion to set aside default under § 473), and it also cuts off the defendant's right to notices and the service of pleadings or papers.”  (Bailey v. Citibank, N.A. (2021) 66 Cal.App.5th 335, 347, emphasis added.) 

Here, the Court notes that default was entered against Safaie in 23SMCV01005 on November 13, 2023.  As such, Safaie had no standing to file a peremptory challenge in the 23SMCV01005, and if Safaie in fact filed such challenge in 23SMCV01005, then the peremptory challenge should have been denied.  

CONCLUSION AND ORDER

            Therefore, the Court grants Moghadam Law’s motion for reconsideration of the Court’s June 5, 2024 orders and denies Safaie’s peremptory challenge, if in fact it was filed in 23SMCV01005, as procedurally defective. 

Notwithstanding, because the subject actions are related, the Court will confer with/defer to the Supervising Judge of the West District as to whether 23SMCV01005 should remain with Judge Moreton due to the peremptory challenge to Judge Sepe-Wiesenfeld in 24SMCV00823 which has not been challenged. 

            The Clerk of the Court shall provide notice of the Court’s ruling. 

DATED:  August 26, 2024                             ___________________________

                                                            Michael E. Whitaker

                                                            Judge of the Superior Court