Filed 7/20/22 Nobel Textile v. Yashouafar CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
NOBEL TEXTILE, INC., B317019
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BC704117
v.
DAVID YASHOUAFAR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Terry A. Green, Judge. Affirmed.
Fairview Law Firm, Fahim Farivar, Brian Ning and
Catherine Jung for Defendant and Appellant.
Law Offices of Nico N. Tabibi, Nico N. Tabibi and Charles
Gardner for Plaintiff and Respondent.
____________________
David Yashouafar defaulted on a civil case against him. He
appeals the trial court’s denial of his motion to set aside the
default. We affirm.
I
In April 2018, Nobel Textile, Inc. filed a complaint against
David Yashouafar and several of his companies. It alleged 16
causes of action stemming from Nobel’s predecessor lending
money to Yashouafar and delivering fabrics to him. Nobel
claimed Yashouafar took the loan and accepted the goods but did
not pay. The balance was over $100,000.
On January 7, 2019, Yashouafar filed an answer denying
the allegations. On June 24, 2019, his counsel filed a motion to
be relieved, and the court granted the motion in September 2019.
Then in November, a minute order noted, “[Yashouafar’s] former
counsel might be retained for this case again.” Yet the minute
order states no appearance for Yashouafar. Neither party
explains why the minute order included this statement.
After September 2019, Yashouafar vanished from the case.
Meanwhile the court held a hearing on an order to show cause
regarding default against the corporate defendants in January
2020 and a final status conference in February 2021.
Continuances due to the pandemic caused the year-long delay.
On January 27, 2021, the court held a hearing on an order
to show cause regarding Yashouafar’s own default. Yashouafar
did not appear. The court struck Yashouafar’s answer and
entered default against him as of that date. On February 11,
2021, Nobel filed a request for entry of default judgment against
Yashouafar.
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On April 21, 2021, represented by new counsel, Yashouafar
filed a motion notifying the court of a stay pausing proceedings
pending Yashouafar’s motion to reopen the bankruptcy case of
Nobel’s predecessor in interest. The trustee declined to reopen
the bankruptcy, however, and the case returned to the superior
court.
Yashouafar filed a motion to set aside the default on July 8,
2021, pursuant to Code of Civil Procedure section 473,
subdivision (b). He claimed that his failure to appear was
because he “had no means to contact the Court and/or defend
himself” during the COVID-19 pandemic, he had been sick
himself, he never received notice of proceedings from Nobel, and
these “issues were compounded” by his inconsistent
representation. He attested he was now prepared to litigate and
attached declarations from his new lawyer and himself.
The new lawyer declared Yashouafar hired him on
February 23, 2021. Yashouafar declared his previous counsel
represented him until January 2020 but did not consistently
appear on his behalf. When Yashouafar tried to attend a hearing
himself in January 2020, he was too late due to traffic. He said
the February 11, 2021 request for entry of default is the first
notice of any proceedings he had received since late 2019. He
said he was “sick and hospitalized for a long period of time.”
Medical documents he attached showed he was treated in
hospitals on three days in August and October 2020 for heart
disease. These documents did not support his claim about being
hospitalized for long periods of time.
The court held a hearing and allowed further briefing on
the matter. After briefing, on October 14, 2021, the court denied
the motion to set aside the default. It explained its ruling was
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not based on whether Nobel properly served Yashouafar, but on
“the fact that this court sent repeated notices to Defendant
[Yashouafar], at the correct address, for well over a year” and
that he, “despite being aware of this case, simply disappeared for
16 months.” (Italics in original.) The court found it “simply too
difficult to believe that every single item went awry” and noted
the presumption that mailed items are received. (Evid Code,
§ 641.) The court set a hearing for an order to show cause
regarding entry of the default judgment for January 24, 2022.
Yashouafar appealed before the trial court entered
judgment against him. In the interests of justice and to avoid
delay, we treat Yashouafar’s appeal as from a judgment. (See
Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1407, fn.
2.)
II
Yashouafar argues denying his motion to set aside default
was an abuse of discretion. He says his failure to appear in the
case between September 2019 and February 2021 was excusable
because of the confusion of the COVID-19 pandemic or because of
Nobel’s intentionally bad service.
A
Code of Civil Procedure section 473, subdivision (b)
provides a trial court has discretion to set aside entry of default
on the basis of mistake, inadvertence, surprise, or excusable
neglect. The defendant bears the burden of establishing a right
to relief. He must specify the actual cause of his failure to
present a defense the first time around and explain why that
failure should be excused. (Hopkins & Carley v. Gens (2011) 200
Cal.App.4th 1401, 1410.) Neglect is excusable if a reasonably
prudent person in similar circumstances might have made the
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same mistake. (Comunidad en Accion v. Los Angeles City Council
(2013) 219 Cal.App.4th 1116, 1132.) A classic example is an
otherwise diligent attorney inadvertently entering the wrong
date in a calendar. (Id. at p. 1133.)
Yashouafar claims his long neglect of this case was
excusable because he received no notice of proceedings. He says
the court “only” mailed him four notices between May 2020 and
January 2021 and that “realistically, [Yashouafar] was only
available to receive the May 2020 notice.” That notice, he says
“could have been lost in the mail.” His evidence was a personal
declaration claiming either he did not receive notice of
proceedings or, if he did, he “may have misunderstood the
significance of any documents that [he] might have received in
the mail” because he does not speak fluent English.
Yashouafar seems to say in his opening brief he was unable
to receive notices or to attend the final status conference in
February 2021 because he was sick with COVID-19. A court may
in its discretion grant relief from default on the basis of illness.
(E.g., Kesselman v. Kesselman (1963) 212 Cal.App.2d 196, 207–
208 [affirming grant of relief when defendant had suffered a
paralytic stroke].) But Yashouafar’s citation to the record does
not show any positive test or COVID-19 treatment—instead it
leads to medical reports from August and October 2020
concerning Yashouafar’s treatment for heart disease and
including a negative COVID-19 test result.
In any event, reasonably prudent people with heart disease
or COVID-19 do not neglect court cases against them for over a
year. Yashouafar has not shown the trial court or this court how
his illness excused his neglect. We cannot say the trial court
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abused its discretion by not finding a colorable excuse on this
record.
B
Yashouafar also argues the court should have granted him
relief because Nobel committed extrinsic fraud by intentionally
serving him at the wrong address. Equitable relief from default
on the basis of extrinsic fraud requires a defendant in default to
demonstrate (1) he has a meritorious case, (2) he has a
satisfactory excuse for not presenting a defense to the original
action, and (3) he demonstrated diligence once the default was
discovered. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.)
Yashouafar appears to have two mailing addresses, in Los
Angeles and Tarzana. The Los Angeles address, where Nobel
served him, is his business address. Yashouafar says he received
nothing from Nobel, but he does not clarify whether or not he
could receive mail at the Los Angeles address in the relevant
time frame. We note Yashouafar’s previous attorney served him
at both addresses, and the court sent all its minute orders to the
Tarzana address Yashouafar admitted was correct.
Nobel’s alleged improper service is no excuse here because
the court mailed notices to the correct address throughout
Yashouafar’s absence. Thus Yashouafar has no excuse for not
presenting a defense in this action, and his extrinsic fraud claim
fails.
Yashouafar cannot dispute he knew of the case against
him. He supplied an answer in January 2019, then failed to
check on the case’s status for over a year. The trial court
correctly noted that “[i]gnoring things in the hope they go away is
no one’s idea of a viable legal strategy.” The court was right to
deny relief from default.
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DISPOSITION
We affirm the judgment and award costs to the respondent.
WILEY, J.
We concur:
GRIMES, Acting P. J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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