Bentley v. Karimi CA4/1 ( 2023 )

Filed 12/14/23 Bentley v. Karimi CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
GEOFFREY T. BENTLEY, D081266
Plaintiff and Appellant,
v.
(Super. Ct. No. 37-2019-
AFSHIN KARIMI, 00027530-CU-CR-CTL)
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Richard S. Whitney, Judge. Reversed and remanded.
Vandeveld Law Offices and Thomas J. Vandeveld III for Geoffrey T.
Bentley, Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Geoffrey Bentley appeals from an order of the Superior Court setting
aside a default judgment that had been entered in his favor against
defendant Afshin Karimi. Bentley argues that the court was without
discretion to grant the motion because it was not timely served. We agree,
and therefore we reverse.
I. PROCEDURAL HISTORY
Bentley filed a complaint against defendant Karimi and The Dank
House on May 28, 2019. Karimi filed an amended answer in February 2020,
but apparently did not respond to discovery.
On June 8, 2021, at Bentley’s request, the trial court entered a default
against Karimi. On October 25, 2021, the trial court entered judgment by
default against Karimi and in favor of Bentley in the total amount of
$96,125.95.
On November 30, 2021, Karimi filed a motion to set aside the June 8,
2021, default and the default judgment dated October 25, 2021 (“the
motion”), as well as a memorandum of points and authorities and his own
declaration in support of the motion. The notice indicated the motion would
be heard on June 24, 2022. However, Karimi did not serve Bentley or his
counsel with the motion and its accompanying pleadings until May 10, 2022.
That same day, May 10, 2022, Karimi also filed a supplemental
memorandum of points and authorities in support of the motion and a
declaration executed by his former lawyer, Scott N. Salmu, admitting fault in
failing to respond to the discovery and the motion to compel discovery.
In the motion, Karimi contended that the default and the judgment
were “the result of the mistake, inadvertence, and neglect of his attorney,
Scott N. Salmu,” and in the supporting documents, he explained further that
he was often unable to reach Salmu and that he had not seen any of the
discovery requests that led to the default judgment. In the corresponding
declaration, Salmu asserted that “[t]he default and default judgment were
entered through my mistake, and/or inadvertence, and/or neglect in that I
failed to timely respond to discovery propounded by Plaintiff, received the
filings of Plaintiffs motion to compel discovery responses and failed to file any
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response, and/or failed to advise my former Client/Defendant to do so.” Based
on those assertions, Karimi sought relief from the default and default
judgment under Code of Civil Procedure section 473, subdivision (b).1
Bentley filed an opposition to the motion, which focused on various
discovery violations and alleged false claims. He did not raise any issues
regarding the timeliness of the motion.
At the hearing on June 24, 2022, the trial court granted Karimi’s
motion to set aside the default and the default judgment. The minute order
for the hearing does not reflect that the court considered any issues relating
to the timeliness of the motion.
Bentley timely appeals.
II. DISCUSSION
A. Standard of Review
A trial court’s ruling granting discretionary relief under section 473,
subdivision (b) is reviewed for abuse of discretion. (Minick v. City of
Petaluma (2016) 3 Cal.App.5th 15, 24.) However, “[a]ny exercise of discretion
must rest on correct legal premises, of course, and in that respect our review
is de novo.” (Id. at p. 25.) It is an abuse of discretion to apply the wrong legal
standard. (Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th
1076, 1089.)
B. Analysis
Karimi sought relief from the default and default judgment based on an
alleged mistake, inadvertence, surprise, or excusable neglect by his counsel,
pursuant to section 473, subdivision (b). He did not raise any other grounds
for relief in his motion or the supporting documents.
1 Undesignated statutory references are to the Code of Civil Procedure.
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Section 473, subdivision (b) provides that “[t]he 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 made within a reasonable time, in no
case exceeding six months, after the judgment, dismissal, order, or proceeding
was taken.” (Italics added.)
As Bentley notes, the six-month time limit for granting relief under
section 473, subdivision (b) is jurisdictional, and “the court may not consider
a motion for relief made after that period has elapsed.” (Mansor, Iver & York
v. Black (2009) 176 Cal.App.4th 36, 42 (Mansor); see also Arambula v. Union
Carbide Corp. (2005) 128 Cal.App.4th 333, 340 (Arambula) [“An ‘application’
for mandatory relief must be made within six months after entry of
judgment . . . a court has no authority to grant relief under section 473,
subdivision (b), unless an application is made within the six-month period”].)
The issue presented in this appeal is whether the motion was “made” within
the six-month limit. We conclude that it was not.
Bentley contends that although Karimi filed his motion on November
30, 2021 a little more than a month after the entry of the default judgment,
he failed to serve it on Bentley until May 10, 2022, more than six months
after the default judgment had been entered. Bentley correctly notes that the
delay in service had the effect of delaying the effective date of the motion for
relief well beyond the six-month limit in section 473, subdivision (b) because
the “application for relief” was not effective until service was perfected.
(Arambula, supra, 128 Cal.App.4th at p. 341 [“application . . . under section
473, subdivision (b) . . . is deemed to be made upon filing in court of a notice
of motion and service of the notice of motion on the adverse party. [Citation.]
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[A]bsent service on the adverse party, there is no ‘application’ for relief”]; see
also section 1005.5 [“A motion . . . is deemed to have been made and to be
pending before the court for all purposes, upon the due service and filing of
the notice of motion.” (Italics added)].)
Because Karimi failed to serve his motion within six months from the
date of entry of the judgment for default, we conclude that the trial court
abused its discretion in ordering relief from default pursuant to section 473,
subdivision (b). (See Arambula, supra, 128 Cal.App.4th at pp. 341–342
[finding a motion pursuant to section 473, subdivision (b) that was not served
within six months of entry of judgment was untimely and the trial court had
no authority to grant the requested relief]; Mansor, supra, 176 Cal.App.4th at
p. 42 [“to the extent the trial court’s order granted statutory relief based on
defendant’s showing of mistake, inadvertence, surprise or excusable neglect,
the motion was untimely and the court was without jurisdiction to make the
order.”].)
Moreover, as Bentley also points out, Karimi did not include a copy of
verified discovery responses along with his motion or serve such response on
Bentley prior to the motion hearing. Thus, the motion was not in proper form
and, even setting aside the service issue, the trial court would have abused
its discretion by granting the motion for this additional reason. (See
Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 728–729.)2
2 Bentley further contends that Karimi is not entitled to relief from
default under principals of equity. Karimi has not filed a responding brief
and therefore has not requested that we consider such relief, and accordingly,
we decline to do so.
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III. DISPOSITION
The trial court’s order setting aside the default judgment is reversed
and the matter is remanded to the trial court with directions to enter a new
order denying the motion to set aside the default and the default judgment.
Appellant is awarded costs on appeal.
KELETY, J.
WE CONCUR:
O’ROURKE, Acting P. J.
IRION, J.
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