Mottaghi v. Tazerouni

Filed 4/23/07 Mottaghi v. Tazerouni CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregory H. Lewis, Judge. Affirmed.

Law Office of Jeanne Collachia and Jeanne Collachia for Defendant and Appellant.

Law Offices of Larry G. Noe and Larry G. Noe for Plaintiff and Respondent.

* * *

Defendant Ali Tazerouni appeals from a judgment after default. He argues the trial court erred by denying his motion for relief from default and subsequent motion for reconsideration. He also challenges the judgment itself, arguing that plaintiff Natalie Mottaghis complaint did not provide him with sufficient notice and failed to state a prima facie case as to any cause of action. Finally, Tazerouni claims that the judgment would permit Mottaghi to recover twice. We find that none of these contentions have merit and affirm the judgment.

I

FACTS

Tazerouni is co-owner and manager of an office building in Tustin. As of December 2001, one of the offices in that building was leased to attorney John J. Reed. Tazerouni was employed by Reed in some capacity; according to the complaint, he was Reeds office manager.^[1]According to Mottaghi, Tazerouni represented to her that he was also an attorney.

Mottaghi was injured in an automobile accident in June 2001. In December 2001, she switched attorneys and hired Reed to handle the case. In June 2002, Reed filed a lawsuit on her behalf. Mottaghis complaint alleges that in 2003 her lawsuit was settled without her permission or input for $27,500. The complaint states that the signature on the settlement agreement was not hers and she did not authorize the settlement. Further, she never received the settlement proceeds. Reed died on December 11, 2003.

Mottaghi did not, apparently, make a creditors claim against Reeds estate. She filed a claim with the State Bar of Californias Client Security Fund, and in March 2005, she received payment of $18,333.33. She also filed the instant lawsuit against Reed and his estate and Tazerouni. The first amended complaint, filed in July 2004, alleged causes of action for attorney malpractice (against Reed and his estate), civil harassment (against Tazerouni), and for fraud, breach of contract and conversion (against all defendants). The prayer sought compensatory damages to be determined at trial but more than $25,000.00.

Tazerouni admits he was served with the first amended complaint (complaint). According to the proof of service, it was personally served on August 4, 2004. Tazerouni did not file the required response within 30 days; he claims he was trying to contact Mottaghis counsel to set a date for a hearing on his demurrer. He then left the matter to his assistant while he was out of the country, and overlooked the matter on his return.

After the 30 days for a responsive pleading had passed, Mottaghi filed a request for entry of default, a copy of which was mailed to Tazerouni. The default was entered by the trial court on September 17, 2004. Initially, in a January 2005 declaration, Tazerouni admitted that he had received the unconformed copy for the request for entry of default on October 5, 2004. Two months later, in a second declaration, he acknowledged the proof of service, but denied any recollection of receiving the request for entry of default, and stated he was unaware his default had been taken until January 2005.

In January 2005, Tazerouni, in propria persona, filed a motion to set aside the default pursuant to Code of Civil Procedure section 473. After a hearing, the court denied the motion. On March 30, Tazerouni, now represented by an attorney, filed a motion for reconsideration. In addition to facts relating to the alleged failure of Mottaghis counsel to return his calls regarding the hearing date, he also claimed new facts regarding Mottaghis claim to the Client Security Fund. The court granted the motion for reconsideration as to the Client Security Fund, but declined to change its ruling on the motion to set aside the default.

A second prove-up hearing was held in January 2006.^[2]At its conclusion, the court took the matter under submission and sent its ruling to Mottaghi on February 2. The court awarded Mottaghi the $25,000 sought in the complaint, plus costs. Mottaghis counsel prepared a judgment consistent with the ruling, which was entered on February 9, 2006, in the amount of $25,394.50. Tazerouni now appeals.

II

DISCUSSION

Motion for Relief from Default

The court may relieve a party from a judgment entered against it through its mistake, inadvertence, surprise or excusable neglect. (Code Civ. Proc., 473, subd. (b); all further statutory references are to this code unless otherwise indicated.) In the trial court, the burden of establishing excusable neglect is on the party seeking relief, who must prove it by a preponderance of the evidence. (Iott v. Franklin (1988) 206 Cal.App.3d 521, 528.)

On appeal, [a] motion seeking such relief lies within the sound discretion of the trial court, and the trial courts decision will not be overturned absent an abuse of discretion. [Citations.] However, the trial courts discretion is not unlimited and must be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.] (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.)

In sum, Tazerouni claims he was entitled to relief because after being served with the complaint,^[3]he repeatedly called Mottaghis counsel between August 15 and September 3 to attempt to find a mutually convenient date for a hearing on a demurrer. He was then out of the country for 10 days. He instructed his assistant to follow up, then overlooked the fact that she failed to do so. On October 5, he received an unconformed copy of the request for entry of default, which had been filed on September 17. Tazerouni did not file the motion for relief from default until January 25, 2005.

Neither ones change of mind nor his inexcusable negligence is ground for vacating a judgment. . . . It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied. . . . The only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded. (Elms v. Elms (1946) 72 Cal.App.2d 508, 513.) Put another way, the acts which brought about the default must have been the acts of a reasonably prudent person under the same circumstances. (Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58.)

Tazerouni argues that his failure to respond . . . is excusable because he personally made numerous attempts to communicate with attorney Larry G. Noes office, he then was out of the country and relied on his assistant who he believed had handled the matter. Additionally, when he received the non-conformed, non-filed Request for Entry of Default, he had no reason to believe that his default had already been taken almost three weeks earlier.

The trial court did not abuse its discretion in determining that the acts which led to Tazerounis default were the acts of a reasonably prudent person under the same circumstances. He was familiar with the legal system, including pleadings and pleading deadlines. Indeed, he does not claim he was ignorant of the deadline to file a response. Instead, he seems to argue that at first he could not file a response because he needed opposing counsel to agree on a hearing date.

While setting a mutually convenient hearing date is always desirable, it is hardly required, nor would it stop a reasonably prudent person from filing a response when the deadline loomed. Nor was Tazerounis complete reliance on his assistant to set the hearing date reasonable. As the defendant, it was incumbent upon Tazerouni to ensure a responsive pleading was filed. Additionally, once Tazerouni had notice that Mottaghi had requested his default, which he admits he had in October, we cannot say a reasonably prudent person would have waited until January of the following year to seek relief. We find no abuse of discretion.

Motion for Reconsideration

Tazerouni next argues that the trial court should have granted his motion for reconsideration in its entirety and changed its initial ruling. A trial courts ruling on a motion for reconsideration is reviewed under the abuse of discretion standard. (Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 319.) A party affected by an order may move for reconsideration based upon new or different facts, circumstances, or law . . . . ( 1008, subd. (a).) To be entitled to reconsideration, a party must (a) show evidence of new or different facts and (b) provide a satisfactory explanation for failing to produce this evidence at an earlier time. (Kalivas v. Barry Controls Corp. (1996) 49 Cal.App.4th 1152, 1160-1161.)

To support his motion, Tazerouni attempted to introduce evidence to contradict the claim of Mottaghis counsel, which had been offered in opposition to his initial motion, that Tazerouni had not contacted his office. This evidence was a fax confirmation of a letter Tazerounis assistant had sent regarding setting a date for a hearing on a demurrer. Tazerounis explanation for not producing this evidence at an earlier time was that he had been unaware of it. Even if accepted as authentic and conclusive evidence that Mottaghis counsel had been contacted by Tazerouni, it is ultimately not relevant. A reasonably prudent defendant, upon not hearing back from opposing counsel, would have simply chosen a hearing date and filed the demurrer.

His second piece of new evidence was a claim that Mottaghi had made to the State Bar of Californias Client Security Fund. Mottaghi had been reimbursed $18,333.33 in connection with her application against attorney John J. Reed. Tazerouni claimed this was a material fact relating to Mottaghis entitlement to damages. The court granted reconsideration on this point, but declined to change its ruling. As we shall discuss post, this was not erroneous; Mottaghis recovery from other sources is not relevant to the default judgment against Tazerouni.

Finally, Tazerouni claimed that Mottaghi had filed a case management statement that did not indicate Tazerounis default had been taken. Additionally, deposition subpoenas requesting records from Reeds office had been served, and at no time did counsel for MOTTAGHI indicate to TAZEROUNI that he had taken TAZEROUNIs default. Thus, TAZEROUNI was lulled into a false belief that MOTTAGHIs counsel was working with him in a spirit of cooperation as to TAZEROUNIs schedule. Given Tazerounis admission that he received an unconformed copy of the request for default in October, it seems incredible that a reasonable person would not have known that something was amiss. In any event, Tazerouni offered no explanation as to why this evidence was not available to him at the time he filed his initial motion in late January. The case management statement was filed in November, and the deposition subpoenas were dated December 7 and December 28. We find no abuse of discretion in the trial courts ruling denying Tazerounis motion for reconsideration.

Adequate Notice

Tazerouni next claims the complaint failed to give him adequate notice that he was being sued for fraud, breach of contract, and conversion. Thus, he claims, the complaint was constitutionally insufficient to comport with due process requirements. The complaints statement of facts, however, alleges: Defendant ALI TAZEROUNI was, and continues to be, an employee at the Law Offices of John J. Reed and was an active participant with Plaintiffs attorney with regards to all of the allegations contained in this complaint. Defendant ALI TAZEROUNI misrepresented to Plaintiff that he was an attorney but he was in fact the office manager.

Tazerouni further argues that the complaint fails to comply with former California Rule of Court, rule 312(g), which required identification of the parties by name as to each cause of action in a multiparty case. He admits this is not enough to invalidate the default judgment, but again argues that he lacked sufficient information to make an informed decision of whether he should answer and defend.

We disagree. Although Tazerouni cites to case law regarding the basic principles of due process, he does not cite to any case where similar language in a complaint was deemed insufficient on those grounds. With the exception of the allegations for legal malpractice, the complaints other allegations repeatedly refer to defendants in the plural rather than singling out a specific defendant. The fraud cause of action uses the redundant defendants, and each of them.

While not elegant, the complaint was sufficient to give Tazerouni notice. The complaint stated under its factual allegations that Tazerouni was an active participant with Plaintiffs attorney with regards to all of the allegations contained in this complaint. By its plain language, this indicated each defendant was being named in each cause of action; indeed, Tazerounis only question should not have been whether he was named in the three disputed causes of action, but whether he was also being sued for attorney malpractice, despite not being at attorney. While the complaint is no model of pleading, it was sufficient to put any reasonable person on notice that they were named as a defendant in the disputed causes of action and required to respond or risk default.

Sufficient Evidence of Mottaghis Prima Facie Case

Tazerouni spends considerable effort arguing that even if taken as true, the allegations in the complaint do not satisfy the requirements of a prima facie case as to any cause of action. He emphasizes repeatedly that Mottaghi has alleged no facts sufficient to prove a prima facie case. This, however, is not the standard on default. [T]he sufficiency of the evidence cannot be reviewed on an appeal from a default judgment. [Citation.] [Citation.] The default admits the allegations of the complaint. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303.)

Thus, if the complaint and evidence introduced at the prove-up hearing sufficiently states a prima facie case, the judgment will be upheld. And in this case, since the complaint sought damages of at least $25,000 for each cause of action, if there is sufficient evidence of any one of the causes of action, it will suffice to uphold the entire judgment.

We therefore review Mottaghis simplest claim, conversion. Conversion is any act of dominion wrongfully exerted over anothers personal property in denial of or inconsistent with his rights therein. (Weiss v. Marcus (1975) 51 Cal.App.3d 590, 599.) Money can be the subject of conversion when a specific, identifiable sum is involved. (Fischer v. Machado (1996) 50 Cal.App.4th 1069, 1072.)

The complaint alleged that defendants concealed that a settlement had been reached in the underlying case and that a check had been received for $27,500 to settle the case. It further alleged that defendants refused to give plaintiff any of that money, and that she had been deprived of her rights to it.

This sufficiently states a prima facie case for conversion. Despite his assertions to the contrary, Mottaghi was not required to prove in the complaint that Tazerouni was the person responsible for taking the settlement check or preventing her from access to it. Tazerouni misunderstands the difference between alleging the fact sufficiently in the complaint (which is required) and proving that the fact is actually true (which is not). On default, it is sufficient for the complaint to allege the facts essential to each cause of action. A judgment by default is as conclusive as to the issues tendered by the complaint as if it had been rendered after answer filed and trial had on allegations denied by the answer. [Citations.] (Flood v. Simpson (1975) 45 Cal.App.3d 644, 651, fn. 12.)

Tazerounis argument, taken to its logical conclusion, would require every plaintiff to prove her allegations in the complaint, lest the defendant default. That, clearly, is not the law. Moreover, it would also defeat an important principle behind the default judgment procedure that he who fails to appear is not entitled to contest the complaints allegations. It is sufficient, on default, that the relevant facts are alleged; they need not be proved. In this case, the relevant fact is that Tazerouni was one of the defendants responsible for converting Mottaghis property. This was sufficiently pled. Tazerounis arguments as to the sufficiency of Mottaghis complaint, therefore, are without merit.

Double Recovery

Finally, Tazerouni contends that the $25,000 default judgment would permit a double recovery because Mottaghi was reimbursed $18,333.33 by the State Bars Client Security Fund. Tazerouni cites a single case on the general principles of the collateral source rule, which addresses an entirely different factual situation. (Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 10.) That case does not apply here, and Tazerouni offers no helpful authority.

Tazerouni repeatedly states that Mottaghi is not entitled to recover damages exceeding the amount in her complaint. What Mottaghi is not allowed to recover, in a default proceeding, is a judgment exceeding the amount specified in her complaint, even though such relief otherwise would have been proper. ( 580, subd. (a).) Thus, though the complaint alleged damages in excess of $25,000, the judgment cannot exceed $25,000.

This does not, however, establish as a matter of either fact or law that Mottaghi was only damaged in the amount of $25,000, which was stated as a minimum amount of damages in her complaint. The value of her personal injury case is unknown. The funds from the State Bar were awarded on the basis of the $27,500 settlement check, minus Reeds expected one-third contingency fee, not the complaint in this case. Therefore, Mottaghi is not precluded from recovering the full amount of the default judgment against Tazerouni in addition to the funds paid to her by the State Bar.

III

DISPOSITION

The judgment is affirmed. Mottaghi is entitled to her costs on appeal.

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

ARONSON, J.

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^[1]Not that it is particularly relevant given the procedural posture of this case, but Tazerouni denied employment by Reed in a 2005 declaration, claiming that he only acted as an occasional Farsi interpreter. His opening brief, however, adopts Mottaghis allegation that he was Reeds office manager.

^[2]The first prove-up hearing, in June 2005, resulted in a judgment that was later vacated by the trial court.

^[3]Tazerounis declaration in support of his motion for relief states that he was served with the complaint on July 29, 2004; the proof of service shows August 4, 2004.