Judge: Michael Small, Case: 19SMUD02318, Date: 2023-10-10 Tentative Ruling

Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.

Case Number: 19SMUD02318    Hearing Date: January 10, 2024    Dept: 57

On June 13, 2023, the Court entered a default judgment in favor of Plaintiff Razan Ammari and against Defendant Sami Ammari, who failed to respond to the First Amended Complaint (“FAC”) that was filed on July 8, 2022.  (The Court will refer to the Plaintiff and Defendant by their first names. No disrespect is intended.).  Sami moved to vacate the default judgment based on Code of Civil Procedure Section 473(d).  In that motion, Sami argued that the default judgment was void.  On October 10, 2023, the Court denied the motion. 

Pending before the Court is another motion that Sami has filed to vacate the default judgment.  This time around, Sami’s motion is based on Code of Civil Procedure Section 473(b).  It seeks relief from the default judgment on the grounds of a purported excusable mistake, inadvertence, surprise or neglect by Steven Tamer, Sami’s counsel.  In a declaration filed in support of the pending motion, Mr. Tamer asserts that he failed to respond to the FAC on Sami’s behalf because as of October 17, 2022, he believed that he no longer was Sami’s counsel.  Mr. Tamer’s declaration further states that he held that belief by dint of a proof of service that Mr. Tamer claims he filed on that date of the Court’s order, issued nearly two years earlier, granting his motion to be relieved as Sami’s counsel.  The Court’s order states that it would become effective upon the filing by Mr. Tamer of proof of service of the order on Sami.  According to Mr. Tamer’s declaration, his belief that he was relieved was erroneous because the Clerk’s office rejected his October 17, 2022 proof of service, meaning that the order never took effect and he was not relieved as Sami’s counsel.   

The excuse for Sami’s failure to respond to the FAC that Mr. Tamer offers in his declaration does not stand up to scrutiny.  It thus affords no basis for Section 473(b) relief from the default judgment.

For one, Mr. Tamer has failed to provide any evidence of an October 17, 2022 proof of service on Sami of the Court’s order granting his motion to be relieved as Sami’s counsel that Mr. Tamer says led to his mistaken belief that he no longer was Sami’s counsel.  Mr. Tamer’s declaration claims that a proof of service on Razan of the order granting his motion to be relieved as Sami’s counsel is attached to the declaration.  No such proof of service is attached to the declaration.  In any event, proof of service of the order on Razan would not have rendered the order effective.  That is because the order states that it would become effective upon service of the order on Sami, not Razan.  A proof of service on Razan on October 17, 2022 thus could not have caused Mr. Tamer to arrive at the mistaken belief that he was relieved as Sami’s counsel as of that date.

Second, even if (A) a proof of service on Sami of the Court’s order granting Mr. Tamer’s motion to be relieved as counsel been filed on October 17, 2022; (B) the Clerk’ office rejected the filing; and (C) Mr. Tamer was unaware of the rejection, this sequence still would not furnish a basis for Section 473(b) relief from the default judgment.  That is because the time for filing a response to the FAC had come and gone well before October 17, 2022.  The due date for the response was August 9, 2022.  According to the timeline in Mr. Tamers declaration, as of August 9, 2022 and continuing through October 16, 2022, he still was counsel for Sami.  In short, any error by Mr. Tamer regarding his status as Sami’s counsel that occurred on October 17, 2022 does not excuse the failure to file on Sami’s behalf a response to the FAC in the period from August 9, 2022 through October 16, 2022.

Third, as indicated above, the Court granted Mr. Tamer’s motion to be relieved as counsel nearly two years before the supposed touchstone date of October 17, 2022.  Specifically, the motion was granted at a hearing on November 30, 2020, and the order memorializing the decision to grant motion was issued by the Court on December 4, 2020.   Mr. Tamer did not at that time serve the order on Sami, as required.  Thus, Mr. Tamer was not officially relieved as counsel on the heels of the Court’s decision granting his motion.  In fact, Mr. Tamer actively continued to serve as Sami’s counsel by filing several motions and attending several hearings on Sami’s behalf.  

For example, on February 22, 2021, Mr. Tamer filed on Sami’s behalf a motion to vacate a judgment that was entered following a trial the previous month at which neither Sami nor Mr. Tamer appeared.  The Court denied that motion.  Mr. Tamer tried again with another motion to vacate that judgment on June 23, 2021.  Mr. Tamer appeared on Sami’s behalf at a hearing July 16, 2021 at which the Court denied that motion.   A third motion that Mr. Tamer filed on August 20, 2021 on Sami’s behalf to vacate the judgment succeeded: the Court granted that motion on February 8, 2022.  Thereafter, at a July 6, 2022 hearing, the Court granted Razan leave to file the FAC and reclassify what had been a limited unlawful detainer case into an unlimited civil case.  Mr. Tamer represented Sami at that hearing.    This history of Mr. Tamer’s representation of Sami long after the Court granted Mr. Tamer’s motion to be relieved as Sami’s counsel undercuts the contention that, all of a sudden on October 17, 2022, Mr. Tamer formed a belief that he was relieved as Sami’s counsel through the filing of a proof of a service that day of the Court’s December 2020 order granting his motion to be relieved as Sami’s counsel.

All told, Mr. Tamer’s declaration does not provide sufficient support for the notion that Sami’s failure to respond to the FAC was the result of an excusable mistake, inadvertence, surprise or neglect by Mr. Tamer that would justify relief for Sami from the default judgment under Section 473(b).   The default judgment against Sami stands.