Judge Michael P. Linfield, Case 21STCV20213 2023-01-17 Tentative Ruling

Judge: Michael P. Linfield, Case: 21STCV20213, Date: 2023-01-17 Tentative Ruling

The Court often posts its tentative several days in advance of the hearing. Please re-check the tentative rulings the day before the hearing to be sure that the Court has not revised the ruling since the time it was posted.

Please call the clerk at (213) 633-0154 by 4:00 pm. the court day before the hearing if you wish to submit on the tentative.

The default and default judgment entered upon Defendant Daniel Sabet are VACATED.

On August 27, 2021, by request of Plaintiff, the Clerk’s Office entered default on Emanuel Sabet, Michael Sabet, Daniel Sabet, and Strategic Legacy Investment Group, Inc.

On September 13, 2021, by request of Plaintiff, the Clerk’s Office entered default on Pedram Abraham Mehrian.

On November 19, 2021, the Court entered default judgment on Defendants, now Judgment Debtors.

On October 13, 2022, by request of Plaintiff, now Judgment Creditor, the Clerk’s Office issued Abstract of Judgment.

On November 8, 2022, Judgment Debtor Daniel Sabet filed his Motion to Vacate Default and Default Judgment. Judgment Debtor concurrently filed; (1) Declaration of Daniel Sabet; (2) Declaration of Yael Tobi; (3) Proof of Service; and (4) Proposed Order.

On December 8, 2022, Judgment Creditor filed their Opposition. Judgment Creditor concurrently filed Declaration of Nader Zargarpour, Esq.

On December 15, 2022, Judgment Debtor filed his Reply. Judgment Debtor concurrently filed: (1) Declaration of Yael Tobi; (2) Declaration of Pamela Mozer; (3) Evidentiary Objections; and (4) Proof of Service.

On December 20, 2022, the Hearing on the Motion to Vacate Default and Default Judgment was continued to January 17, 2023.

Judgment Debtor filed Evidentiary Objections to Judgment Creditor’s Declaration. The following are the Court’s rulings as to the Evidentiary Objections:

Objection
1		OVERRULED
2		OVERRULED
3		OVERRULED
4		OVERRULED
5		OVERRULED
6		OVERRULED
7		OVERRULED
8		OVERRULED
9		OVERRULED
10	SUSTAINED
11		OVERRULED
12		OVERRULED
13		OVERRULED
14		OVERRULED
15		OVERRULED
16		OVERRULED
17	SUSTAINED
18		OVERRULED
19		OVERRULED
20		OVERRULED
21	SUSTAINED
22	SUSTAINED
23		OVERRULED

“When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” (Code Civ. Proc., § 473.5, subd. (a).)

It has been long held that “the reference in Code of Civil Procedure section 473.5 to ‘actual notice’ means genuine knowledge of the party litigant and does not contemplate notice imputed to a principal from an attorney’s actual notice.” (Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895.)

“A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” (Code Civ. Proc., § 473.5, subd. (b).)

“Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.” (Code Civ. Proc., § 473.5, subd. (c).)

Judgment Debtor Daniel Sabet moves the Court to: (1) vacate the default and default judgment entered against him; (2) grant him leave to file his Demurrer; and (3) set his Demurrer for a hearing on the first available hearing date on which Counsel for both Parties are available. (Motion, p. 10:16–20.)

Judgment Debtor argues that this relief would be appropriate because he lacked actual notice that this lawsuit existed until September 2022 (Id. at p. 5:3–4.) Among other things, Judgment Debtor declares: (1) that he is a former Senior Financial Officer of Strategic Legacy Investment Group, Inc.; (2) that he voluntarily left that position on or about December 24, 2019; (3) that he first learned about this lawsuit in September 2022; (4) that he first received the Summons, Complaint, Notice of Default, and Default Judgment in October 2022; (5) that he was never personally served with these documents, including by receiving a copy of the Summons and Complaint from anyone at his former office; and (6) that he did not avoid personal service and does not actively attempt to conceal his whereabouts. (Decl. Sabet, ¶¶ 2–7.)

Judgment Creditor opposes the Motion, arguing: (1) that Judgment Debtor has not provided any credible evidence to establish that he did not have actual notice; (2) that Judgment Debtor has failed to meet and confer regarding the Motion; and (3) that there is no other basis for the relief Judgment Debtor seeks because he had actual notice during the pendency of the action. (Opposition, pp. 2:12–23, 3:1–2.)

Notably, Judgment Creditor’s Counsel declares that he had been contacted by Pamela Mozer, who represented all other Judgment Debtors except for Daniel Sabet. (Decl. Zargarpour, ¶ 4.) Although at one point Counsel Mozer requested that Daniel Sabet be included in a settlement she was negotiating on behalf of all other Judgment Debtors, there is no indication that she did so while representing Daniel Sabet, nor is there any indication she or any of the other Judgment Debtors notified him. (Id. at ¶ 6.)

The evidence before the Court supports a finding that Judgment Debtor Daniel Sabet did not have actual notice of this matter until September 2022, that Judgment Debtor has not actually been served in this matter, and that Judgment Debtor’s lack of actual notice was not caused by his avoidance of service or inexcusable neglect.

The Court GRANTS Judgment Debtor Daniel Sabet’s Motion to Vacate Default and Default Judgment.

The Court VACATES the default and default judgment entered against Judgment Debtor, now Defendant.

The Court grants Defendant leave to file his Demurrer. Defendant is ordered to file his Demurrer within ten days. Defendant may reserve a hearing in the normal manner allowed by this Department.

The default and default judgment entered upon Defendant Daniel Sabet are VACATED.