MOGHADDAM v. BONE

Filed 7/27/06; pub order 8/25/06 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

HOUMAN MOGHADDAM,

Plaintiff and Appellant,

KEVIN BONE et al.,

Defendants and Respondents.

G035605

(Super. Ct. No. 811370)

O P I N I O N

Appeal from postjudgment orders of the Superior Court of Orange County, Hugh Michael Brenner, Judge. Reversed and remanded.

Law Offices of Yevgeniya G. Lisitsa and Yevgeniya G. Lisitsa for Plaintiff and Appellant.

M. Candice Bryner for Defendants and Respondents.

The trial court entered a default judgment in favor of Houman Moghaddam when Kevin Bone and Morgan Bone (the Bones) failed to answer the complaint. The default was later set aside based on the Bones' unopposed claim of extrinsic fraud/mistake. Subsequently, Moghaddam moved the court to abandon its decision to vacate the default judgment. The trial court revisited the motion to set aside and reaffirmed its previous ruling. Moghaddam challenges: (1) the validity of the court's original decision to vacate the default judgment, claiming the Bones failed to give him proper notice; and (2) the court's reaffirmation of the set aside order, on the ground the trial court improperly placed the burden of proof on him rather than on the Bones. We conclude his arguments as to both rulings have merit and, therefore, we reverse both orders and remand the matter. The motion to dismiss the appeal and for sanctions is denied.

FACTS

On January 20, 1999, Kevin Bone and his wife, Morgan Bone, re-leased a car to Houman Moghaddam. It is disputed who was required to make the January lease payment, and neither party paid it. After subsequent payments went unpaid, Moghaddam received a negative mark on his credit report for defaulting on a car lease, which allegedly also resulted in a monetary loss.

Moghaddam filed a lawsuit against the Bones seeking both compensatory and punitive damages for breach of contract and fraud.[1] The Bones were purportedly personally served by a process server on July 28, 1999, at their residence of 9 Ovation, Aliso Viejo, California 92656. They deny receiving a copy of the summons and the complaint.

On December 8, 1999, with no answer filed by the Bones, the court scheduled a default â€

Description	Trial court's ruling granting defendant's motion to set aside default and default judgment was void where defendant used wrong zip code when mailing notice of motion to plaintiff and plaintiff denied receiving it. In reconsideration of defendant's motion to set aside default and default judgment, trial court incorrectly placed burden on plaintiff to convince the court the previous orders should have been overturned. The burden should have been placed on defendant to show that default and default judgment should have been set aside.
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