Judge Stephen I. Goorvitch, Case BC642859 2022-10-10 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: BC642859, Date: 2022-10-10 Tentative Ruling

Case Number: BC642859 Hearing Date: October 10, 2022 Dept: 39

Neil Kerman, et al. v. Captech International, LLC, et al.

Case No. BC642859

Motion to Vacate/Set Aside Default and Default Judgment

The Court posts this tentative order in advance of the hearing. Any party who does not appear shall waive the right to be heard and shall submit to entry of this order. Any party who requires assistance with a remote appearance may contact the Court’s clerk, Roberto Mendoza, at (213) 633-0159.

Plaintiff Neil Kerman (“Plaintiff”) filed this action on December 6, 2016, against Captech International, LLC (“Captech”) and Asher Wagh (“Defendant Wagh”) asserting causes of action for breach of contract, breach of fiduciary duty, corporate waste, unjust enrichment, conversion, and related causes of action and remedies. On April 20, 2018, Defendant Wagh filed a notice of stay due to his bankruptcy. Specifically, on April 19, 2018, Defendant filed a Voluntary Petition for Individuals Filing for Bankruptcy under Chapter 11 before the U.S. Bankruptcy Court for the Central District of California, entitled In re Asher Wagh, Case Number 2:18-BK-14499-WB. On

April 27, 2019, Plaintiff filed a motion to enforce a settlement and enter a judgment against Captech. On May 9, 2018, the Court (Feffer, J.) granted the motion and issued a judgment in favor of Plaintiff and against Captech in the amount of $1,538,000. Acting as a self-represented party, Defendant then filed a “Motion to Vacate and Set Aside Stipulated Judgment and Alleged Settlement Agreement.” The motion was filed on June 14, 2018, by Defendant Wagh, who was acting as a self-represented party. A notice of termination of stay was filed on July 17, 2018. The Court held a hearing on the motion on August 3, 2018, and denied the motion. An order denying the motion was issued on September 6, 2018.

The case proceeded against Defendant Wagh. On August 24, 2018, Plaintiff filed a motion to strike Defendant Wagh’s answer and enter default based upon his failure to comply with his discovery obligations. The Court held a hearing on September 28, 2018, and afforded Defendant Wagh another opportunity to comply with his discovery obligations. The Court held another hearing on November 15, 2018, and found that Defendant Wah not complied with “numerous orders” and had not filed an opposition to the motion for terminating sanctions. Therefore, the Court granted Plaintiff’s motion and ordered Defendant Wagh’s answer to be stricken and default to be entered.

The Court set an Order to Show Cause why a default judgment should not be issued. Defendant Wagh filed a motion for reconsideration of the Court’s order striking his answer, as well as a motion for judgment on the pleadings. The Court held a hearing on March 1, 2019, and denied Defendant Wagh’s motions. The Court found that Plaintiff is entitled to a default judgment. On August 6, 2019, the Court issued a judgment in favor of Plaintiff, individually and derivatively on behalf of Captech, for $810,468.89 against Defendant Wagh.

On October 3, 2019, Defendant Wagh filed a “Motion to Vacate Default and Default Judgment.” The Court (Feffer, J.) held a hearing on October 30, 2019, and denied the motion. The Court ruled as follows: The Court finds that Defendant Wagh failed to demonstrate that the judgment is void and that he is entitled to relief under Section 473, subdivision (d). Defendant failed to demonstrate that he is entitled to relief from default judgment on equitable grounds. And Defendant failed to demonstrate that the default judgment should be set aside on grounds of fraud. The Motion to Set Aside/Vacate Default and/or Default Judgment is DENIED IN ITS ENTIRETY.” (Minute Order, dated October 30, 2019.)

On November 26, 2019, Defendant Wagh filed a notice of appeal challenging Judge Feffer’s orders denying his motion to set aside entry of default and default judgment The District Court of Appeal dismissed the appeal on December 27, 2019. The remittitur issued on February 27, 2020.

On September 3, 2020, Defendant Wagh filed another motion to set aside/vacate default and/or default judgment under Code of Civil Procedure section 473. The motion was noticed for hearing on January 13, 2021. Defendant Wagh rescheduled the hearing through the court reservation system for June 16, 2021. Then, Defendant Wagh rescheduled the hearing through the court reservations system for October 6, 2021. Then, Defendant Wagh rescheduled the hearing through the court reservation system for January 12, 2022. Then, Defendant Wagh rescheduled the hearing through the court reservation system for May 10, 2022. Then, Defendant Wagh rescheduled the hearing through the court reservation system for September 7, 2022.

On August 29, 2022, the Court continued the hearing from September 7, 2022, to September 12, 2022, at 8:30 a.m., and ordered: “Defendant Wagh shall not reschedule this motion through the court reservation system.” (See Court’s Minute Order, dated August 29, 2022. The Court further ordered: “If Defendant Wagh wishes to reschedule the hearing on this motion, he must file an ex parte application and proposed order to do so. The Court provides notice that if Defendant Wagh violates this order by rescheduling the hearing through the court reservation system, he shall waive a hearing in this matter, and the Court will decide the motion on the pleadings without holding a hearing or affording Defendant Wagh a further opportunity to be heard.” (Ibid.) Inexplicably, Defendant Wagh then continued the hearing through the court reservation system to January 11, 2023.

The Court issued a minute order on September 8, 2023, advancing the hearing to October 10, 2022, and ordering Defendant Wagh not to reschedule the hearing through the court reservation system. The Court also issued an Order to Show Cause why the motion should not be denied as a sanction under Code of Civil Procedure section 128.7. The Court incorporates its minute order of September 8, 2022, by reference.

The Court has reviewed Defendant Wagh’s response to the Court’s Order to Show Cause. Following a hearing, the Court orders as follows:

1. Defendant Wagh’s motion is denied based upon the principles of res judicata and collateral estoppel.

2. In the alternative, Defendant Wagh’s motion is denied under Code of Civil Procedure section 473 for failure to seek relief within six months. The remittitur was issued on February 28, 2020, and this motion was filed on September 3, 2020, which is over six months after the judgment became final. In the alternative, Defendant Wagh violated the six month deadline by voluntarily continuing the motion for over two years.

3. In the alternative, Defendant Wagh’s motion is denied based upon the procedural defect of not having filed a memorandum of points and authorities, in violation of California Rules of Court, rule 3.1112(a).

4. In the alternative, Defendant Wagh’s motion is denied as a sanction under Code of Civil Procedure section 128.7, per the Court’s written notice of September 8, 2022.

5. In the alternative, Defendant Wagh’s motion is denied on the merits.

6. The Court’s clerk shall provide notice.