Judge Ralph C. Hofer, Case BC644772 2022-07-29 Tentative Ruling

Plaintiff Maroot Sahakian alleges that he was a paying tenant of defendant Sarkis Khachmanian at premises in Glendale, and that plaintiff was attacked and beaten by other tenants at the property, defendants Minasova, Artur, and a trespasser illegally housing with them, defendant Guillermo, as a result of which plaintiff suffered severe and disabling injuries.

Plaintiff alleges that defendant Khachamanian, and his employee and building manager, defendant Cago Cherchyan, were aware of dangerous violent behaviors or tendencies of the other defendants, and specifically that Minasova, a transgender, was doing hormone replacement therapy without a doctor’s supervision and having violent episodes due to unbalanced testosterone level/intake, and that defendants had heard from Minasova directly that Minasova had no recollection or ability to control the violent and bizarre conduct. Plaintiff alleges that defendants had been advised by plaintiff and his son that they were afraid of the co-tenant defendants, that the other defendants had been physically violent, and that defendants witnessed plaintiff being grabbed by his neck and shirt, and choked, and also witnessed Minasova brandishing his gun toward plaintiff and telling plaintiff Minasova was not afraid to use the gun.

Plaintiff alleges that he repeatedly requested that defendants Khachmanian and the manager advise the other defendants to stay away from plaintiff or to evict them, but defendants failed and refused to take the requested action, therefore negligently failing to protect plaintiff from the physical attack which forms this lawsuit.

The file shows that on November 24, 2020, the court entered default against defendant Cago Cherchyan, based on proof of service on Cago Cherchyan by substituted service at defendant’s home on defendant’s wife, Aregnav Cherchyan, with follow up mailing on August 28, 2018. The proof of service was filed on October 8, 2020.

On July 2, 2021, the court heard a motion filed by defendant and cross-complainant Sarkis Khachmanian to set aside/vacate the default entered against Cago Cherchyan. The motion was denied, the court finding that the moving defendant “has failed to establish that he has standing or legal authority to bring this motion on behalf of the defaulted defendant Cago Cherchyan.”

The court on that same date also heard an ex parte application brought by moving party Farmers to intervene as defendant, vacate default and dismiss Doe Amendment and to continue trial, which was denied without prejudice to the moving party bringing a properly noticed motion.

On October 1, 2021, the court heard motions by the intervenor Farmers to vacate the default judgment on behalf of Gagik Cherechyan and to dismiss the Doe Amendment 2. The court adopted its tentative ruling and made the ruling its final orders. The motion to vacate the default judgment was granted pursuant to CCP section 473(d) on the ground defendant was not properly served with a statement of damages prior to the entry of default. The default of defendant Cherchyan Cago aka Gago Cherchyan entered on November 24, 2020 was ordered vacated and set aside. The motion to dismiss Doe Amendment 2 was denied.

On September 29, 2021, the court received an Amendment to Complaint, indicating that “The plaintiff, having designated a defendant in the complaint by the incorrect name of: Cherchyan, Cago and having discovered the true name of the defendant to be Cherchyan, Gagik amends the complaint by substituting the true name for the incorrect name wherever it appears in the complaint.” The court signed the order, ordering the “amendment approved and filed,” on December 13, 2021.

On November 12, 2021, plaintiff filed an appeal. In support of the appeal, plaintiff Sahakian evidently attached as the appealed order a copy of the tentative ruling in connection with the October 1, 2021 hearing. On February 9, 2021, the clerk of the court of appeal sent notice to plaintiff requesting him to demonstrate in writing within 15 days why the appeal should not be dismissed as having been taken from a nonappealable order. Plaintiff requested more time to file the response. An initial request for more time was granted, and a second request for more time was denied. Ultimately, plaintiff filed no response to the February 9, 2021 order. On March 16, 2022, the court of appeal filed a Dismissal Order, ordering the appeal initiated by the notice filed on November 12, 2021 dismissed.

Moving party, intervenor Farmers Insurance Exchange, is an insurer which issued an insurance policy, an apartment policy, for the subject premises, which arguably affords coverage to Gagik Cherechyan, who was an individual working as the property manager at the time of the occurrences alleged in the complaint.

Farmers argues that when the sheriff went out to serve the complaint on Cago Cherchyan AKA Gago Cherychyan, the sheriff was told there was no one there by that name. The proof of service states, “There is no Cago Cherchyan at location. Per male ID, his name is Gagik Cherchyan.” [Lloyd Decl., para. 8, Ex. D]. The proof of service indicates service was not made or was cancelled and that the document was executed on August 21, 2018. [Ex. D].

As argued in the moving papers, the Amendment filed in this action on September 29, 2021, and signed by the court on December 13, 2021, was entered as the court’s order in error, as Farmers has shown that at the time the correction was sought to be made, and the order was entered thereon, the named defendant was deceased, having died on April 13, 2020. [Lloyd Decl., para. 12, Ex. H].

Farmers relies on CCP section 1250.220 (b), arguing that plaintiff improperly failed to name as defendant the deceased party’s personal representative of the estate of such person, or the heirs of the deceased person. That section pertains to eminent domain proceedings, which is not what is being pursued here. However, under CCP section 377.40:

“Subject to Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims, a cause of action against a decedent that survives may be asserted against the decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest.”

“(a)(1) The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect…”

It appears that the court order entered based on the submission of the form was accordingly entered in error, as the amendment did not properly correct the mistake in the name of a party, as the party named was deceased at the time, and the requested correction did not name an appropriate party, such as the decedent’s personal representative or successor in interest. Plaintiff has not filed written opposition to this motion or explained why the court order was correctly entered.

“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.”

The court further finds that Farmers has previously established to the satisfaction of the court that the party named as Doe 2 in this matter, Cago Cherechyan, is a person who likely cannot be served, and would not subject the intervenor insurer to any involvement, as that person is not the insurer’s insured.

The court will also find that plaintiff was aware of the true name of Gagik Cherechyan no later than August 18, 2018, when Deputy Sheriff Jim McDonnell reported that a personal service attempt on defendant Cago Cherchyan had failed, stating, “PER MALE ID, HIS NAME IS GAGIK CHERECHYAN.” [Ex. D, Report of Inability to Serve Amended Summons, executed 8/21/18, filed 11/9/20]. Any further amendment in this matter would require a court order and would likely face significant challenges due to relation back issues raising the bar of the statute of limitations.

The Court also orders that defendant Doe 2, identified in Amendment to Complaint filed on August 10, 2018 as Cago Cherchyan, is dismissed with prejudice from this action. Judgment is entered in favor of defendant Cago Cherchyan and against plaintiff Maroot Sahakian.

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