Judge Teresa A. Beaudet, Case Number: 23STCV09104, Date: 2024-01-10 Tentative Ruling

Plaintiff Siranush Akherdyan filed this action on April 25, 2023 against Defendants Masis Tamazyan (“Tamazyan”) and Elen Tahmasian (“Tahmasian”). The Complaint alleges causes of action for (1) declaratory relief re: real property resulting trust, and (2) “in the alternative,” declaratory relief re: deed of trust priority.

On July 7, 2023, Tahmasian filed a Cross-Complaint against Cross-Defendants Siranush Akherdyan a.k.a. Siranush Akhverdyan, Tamazyan, and Soorage Tomasian (“Tomasian”). The Cross-Complaint alleges causes of action for (1) fraudulent conveyance, (2) quiet title, (3) cancellation of instrument, (4) negligence, and (5) declaratory relief.

On November 21, 2023, default was entered against Tomasian on the Cross-Complaint filed on July 7, 2023.

Tomasian now moves “to set aside the default judgment entered against him…in favor of Cross-Complainant ELEN TAHMASIAN.”[1] No opposition to the motion was filed.

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

“[B]ecause the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 [negative treatment on other grounds].) Where the party in default moves promptly to seek relief, and no prejudice to the opposing party will result from setting aside the default, “very slight evidence will be required to justify a court in setting aside the default.” (Ibid.)

In his declaration in support of the motion, Tomasian states that “[i]n or around August 1, 2023, I received service of the Cross-Complaint filed against me in the instant action. I was referred to attorney Sevan Gorginian, and I contacted him within a week or so of service.” (Tomasian Decl., ¶ 2.) Tomasian further indicates that “Mr. Gorginian informed me that he is a bankruptcy attorney and not a civil attorney, but he stated that he was familiar with Cross-Complainant’s counsel and would contact them to discuss dismissing me from the case, as there did not seem to be any basis for my inclusion in this matter.” (Tomasian Decl., ¶ 3.) Tomasian states that “[a]t no point did Mr. Gorginian inform me that I needed to file a responsive pleading with the Court, and I did not know this was required, as I am not familiar with lawsuits.” (Tomasian Decl., ¶ 4.)

Tomasian states that “[i]n November 2023, I received a copy of a Request for Entry of Default for this case, and I was surprised by this because I believed that either the issue was dealt with (and that I was dismissed from the case) or that Mr. Gorginian was still discussing my dismissal with Cross-Complainant’s counsel. I contacted Mr. Gorginian again to ask what needs to be done, and Mr. Gorginian referred me to counsel of record and I retained them to represent me in this action.” (Tomasian Decl., ¶ 6.)

In the motion, Tomasian asserts that he “diligently contacted counsel upon receiving service of the Cross-Complaint, and mistakenly was under the impression that this attorney was still in the midst of discussions with Cross-Complainant regarding [Tomasian’s] dismissal…[Tomasian] was not informed by his limited scope attorney that a responsive pleading was required and was therefore completely surprised to receive a Request for Entry of Default…Upon learning of the default judgment, [Tomasian] diligently retained counsel of record to file this Motion.” (Mot. at p. 2:2-7.)

Tomasian also submitted a copy of his proposed answer to the Cross-Complaint. (Niman Decl., ¶ 2, Ex. 1.)

Based on the foregoing, and in light of the lack of any opposition, the Court finds that Tomasian has demonstrated good cause under Code of Civil Procedure section 473, subdivision (b) for the Court to set aside the November 21, 2023 default.

Based on the foregoing, Tomasian’s motion is granted. The default entered against Tomasian on November 21, 2023 is ordered set aside.

Tomasian is ordered to file his proposed answer to the Cross-Complaint within 10 days of the date of this Order.¿

[1]The Court notes that default was entered by the Clerk against Tomasian on November 21, 2023, default judgment has not yet been entered by the Court. Thus, the Court construes the instant motion as one to set aside the subject November 21, 2023 default. Tomasian’s motion asserts, inter alia, that “[t]he Court entered default judgment against Defendants on November 21, 2023, so this Motion is well within the six-month limit proscribed by statute.” (Mot. at p. 2:21-23.)

SIRANUSH AKHERDYAN, Plaintiff, vs. MASIS TAMAZYAN, et al., Defendants.	Case No.:	23STCV09104
	Hearing Date:	January 10, 2024
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: CROSS-DEFENDANT SOORAGE TOMASIAN’S MOTION TO SET ASIDE DEFAULT JUDGMENT PURSUANT TO CODE CIVIL PROCEDURE SECTION 473(b)
AND RELATED CROSS-ACTION

Superior Court of California

County of Los Angeles

Department 50