Kesherim v. Mozaffarian CA2/4

Filed 8/15/16 Kesherim v. Mozaffarian CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION FOUR

B266905
DAVID KESHERIM, (Los Angeles County
Super. Ct. No. BC571386)
Plaintiff and Appellant,

v.

KIM MOZAFFARIAN et al.,

Defendants and Respondents.

APPEAL from an order of the Superior Court of Los Angeles County,
Susan Bryant-Deason, Judge. Reversed and remanded with directions.
Law Offices of Nico N. Tabibi and Nico N. Tabibi for Plaintiff and
Appellant.
No appearance by Defendants and Respondents.
 In the underlying action, appellant David Kesherim, doing business as
Kesherim and Ben David (Kesherim), filed a complaint to enforce a judgment
entered in 2005, which reflected a stipulated judgment against Fariborz
Mozaffarian and a default judgment against Kim Mozaffarian. After the
Mozaffarians failed to answer the complaint, the trial court denied Kesherim’s
request for a default judgment against them on the ground that the action was
time-barred. We conclude that the trial court erred in doing so, as the right to
assert the statute of limitations as an affirmative defense belonged solely to the
Mozaffarians. We reverse the order of dismissal and remand the matter for further
proceedings.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
On January 12, 2005, an amended judgment was entered in favor of
Kesherim against the Mozaffarians, doing business as Mozaffarian Jewelry. The
judgment stated on its face that it was against Fariborz by stipulation, and against
Kim by default. The judgment awarded Kesherim $70,704 in damages against
Fariborz. The judgment also awarded him the additional sum of $27,674.46
against Kim.1
On February 4, 2015, Kesherim filed a complaint to enforce the 2005
judgment, alleging that despite his demand, the Mozaffarians had paid no portion
of the awards against them. The complaint further alleged that the judgment had
become final, as “it ha[d] not been vacated, modified, stayed, or set aside, and the
time for appeal has expired.” The complaint sought recovery of the outstanding

1 That sum encompassed $17,583 in damages, $7,206.72 in prejudgment
interest, $2,655.74 in attorney fees, and $229 in costs.

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awards, together with costs and accrued interest. In June 2015, the clerk entered
the Mozaffarians’ default.
On July 2, 2015, Kesherim requested that a default judgment be entered
against the Mozaffarians. Kesherim sought an award totaling $147,222.27 against
Fariborz and an additional award totaling $46,563.68 against Kim. In support of
the request, Kesherim asked the trial court to take judicial notice of the 2005
judgment.
The trial court denied the request and ordered the action dismissed,
concluding that the action was untimely under Code of Civil Procedure section
337.5, which establishes a 10-year limitations period for actions on a judgment.2
By ex parte application, Kesherim sought reconsideration or other relief from the
ruling, contending that the court was not authorized to assess whether the action
was untimely, and alternatively, that the action had been filed within the
limitations period. After the court denied the ex parte application, this appeal
followed.3

DISCUSSION
Kesherim contends the trial court erred in denying a default judgment in his
favor against the Mozaffarians on the basis of the applicable statute of limitations.
He contends (1) that the court lacked the authority to deny his request on the basis
of the statute of limitations, and (2) that his action was timely, at least with respect

2 All further statutory citations are to the Code of Civil Procedure.
3 The written order of dismissal is an appealable judgment, as it was executed
by the trial court and filed in the action. (Jocer Enterprises, Inc. v. Price (2010)
183 Cal.App.4th 559, 565, fn. 4.)

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to Kim. As explained below, because we agree with his first challenge to the
ruling, the order of dismissal must be reversed.4

A. Governing Principles
We begin by discussing the principles applicable to a request for a default
judgment in an independent action on a pre-existing judgment.

1. Requests for Default Judgments
Upon the plaintiff’s application, the trial court is authorized to enter a
judgment in an action when the defendant has failed to answer the complaint and
the clerk has entered the defendant’s default. (§ 585, subd. (b).) “Generally, a
defendant in default ‘confesses the material allegations of the complaint.’
[Citation.]” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 392,
quoting Taliaferro v. Davis (1963) 216 Cal.App.2d 398, 408.) Thus, “‘“the
defendant’s failure to answer has the same effect as an express admission of the
matters well pleaded in the complaint.”’ [Citation.]” (Kim v. Westmoore
Partners, Inc. (2011) 201 Cal.App.4th 267, 281 (Kim), quoting Steven M. Garber
& Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 823.) For that reason,
those allegations “are treated as true for purposes of obtaining a default
judgment.” (Kim, supra, 281 Cal.App.4th at p. 281.)

4 No respondent’s brief was filed. The rule we follow in such circumstances
“is to examine the record on the basis of appellant’s brief and to reverse only if
prejudicial error is found. [Citations.]” (Votaw Precision Tool Co. v. Air Canada
(1976) 60 Cal.App.3d 52, 55; accord, Lee v. Wells Fargo Bank (2001) 88
Cal.App.4th 1187, 1192, fn. 7; Carboni v. Arrospide (1991) 2 Cal.App.4th 76, 80,
fn. 2; see Cal. Rules of Court, rule 8.220(a)(2); In re Bryce C. (1995) 12 Cal.4th
226, 232-233.)

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 The trial court also may enter a judgment in the defaulting defendant’s favor
when the complaint does not state a cause of action. (Taliaferro v. Davis, supra,
216 Cal.App.2d at pp. 408-414; Taliaferro v. Taliaferro (1959) 171 Cal.App.2d 1,
3-9.) No judgment against the defendant can rest on such a complaint, as “‘[a]
defendant who fails to answer admits only facts that are well pleaded.’” (Falahati
v. Kondo (2005) 127 Cal.App.4th 823, 829, quoting 6 Witkin, Cal. Procedure (4th
ed. 1997) Proceedings Without Trial, § 160, p. 574; Buck v. Morrossis (1952) 114
Cal.App.2d 461, 466.)
In determining whether the complaint states a cause of action, the trial court
may, in suitable circumstances, consider matters not alleged in the complaint. The
court may disregard allegations in the complaint contradicted by the plaintiff’s
admissions in seeking a default judgment. (Taliaferro v. Taliaferro, supra, 171
Cal.App.2d at pp. 3-6; see Scafidi v. Western Loan & Bldg. Co. (1946) 72
Cal.App.2d 550, 560-561.) Furthermore, when the plaintiff’s request for a default
judgment invokes facts properly subject to judicial notice, the court assesses the
complaint’s sufficiency in light of those facts. (Taliaferro v. Davis, supra, 216
Cal.App.2d at pp. 408-414.)

2. Actions on a Judgment
Under the Enforcement of Judgments Law (§ 680.010 et seq.), a money
judgment is enforceable for a 10-year period following the date of its entry
(§ 683.020).5 That statutory scheme provides two methods for preserving a
judgment’s enforceability. “One way to preserve such a judgment is to file an

5 A money judgment is “that part of a judgment that requires the payment of
money.” (§ 680.270.)

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application for renewal under the terms of . . . sections 683.120 and 683.130
before the expiration of the 10-year enforceability period. Such application
automatically renews the judgment for a period of 10 years. (Code Civ. Proc.,
§ 683.120, subd. (b).) . . . [¶] Alternatively, . . . section 683.050 provides:
‘Nothing in this chapter limits any right the judgment creditor may have to bring
an action on a judgment, but any such action shall be commenced within the
period described by . . . Section 337.5.’ Section 337.5, subdivision [b], prescribes
a 10-year limitation for an ‘action upon a judgment or decree of any court of the
United States or of any state within the United States.’” (Kertesz v. Ostrovsky
(2004) 115 Cal.App.4th 369, 372-373 (Kertesz), italics omitted.)
As Kesherim initiated an action on the judgment in lieu of renewing it, his
claim is subject to the 10-year limitations period set forth in section 337.5,
subdivision (b). (Kertesz, supra, 115 Cal.App.4th at p. 373.) That period is not
coterminous with the 10-year period for renewing the judgment, which
commences when the judgment is entered and is not tolled for any reason.
(Pratali v. Gates (1992) 4 Cal.App.4th 632, 638.) Under subdivision (b) of
section 337.5, a cause of action on a judgment accrues when “the judgment has
become final either upon expiration of the period within which an appeal may be
taken, or, if an appeal is taken, upon the issuance of the remittitur when the
judgment has been affirmed” (Hoover v. Galbraith (1972) 7 Cal.3d 519, 525-526),
absent any applicable tolling (Kertesz, supra, at pp. 373-374). Ordinarily, when a
judgment is appealable, the time for an appeal expires no later than 60 days after
notice of entry of the judgment if such notice is served, and in any event, no later
than 180 days after entry of the judgment. (Cal. Rules of Court, rule 8.104(a).)
Here, the 2005 judgments against the Mozaffarians were subject to different
rules regarding appealability. A judgment by default, such as that taken against

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Kim, is appealable by the defaulting party, albeit on narrow grounds: review is
limited to jurisdictional issues and the sufficiency of the pleadings. (Corona v.
Lundigan (1984) 158 Cal.App.3d 764, 766-767.) In contrast, a judgment by
stipulation, such as that taken by Fariborz, is ordinarily not appealable, and thus is
final upon entry. (Cadle Co. II, Inc. v. Sundance Financial, Inc. (2007) 154
Cal.App.4th 622, 624.) “An exception to [that] rule exists when both parties enter
into the stipulated judgment in order to facilitate an appeal.” (Ibid.)

B. Analysis
The key issue presented is whether the trial court was authorized to deny
Kesherim’s request for a default judgment on the basis of the statute of limitations.
Kesherim’s complaint was filed on February 4, 2015, 10 years and 22 days after
entry of the 2005 judgment. Although the complaint does not state that the 2005
judgment against Kim was by default and that the 2005 judgment against Fariborz
was by stipulation, those facts were disclosed in the 2005 judgment itself,
regarding which Kesherim sought judicial notice. In denying Kesherim’s request
for a default judgment under the 10-year statutory period set forth in subdivision
(b) of section 337.5, the court stated that the 2005 judgment comprised “a default
judgment and a stipulated judgment from which there is no applicable appellate
period which would apply in this case.”6 For the reasons explained below, the

6 In determining when the judgments became final for purposes of an appeal,
the trial court was mistaken, at least with respect to the judgment against Kim.
Because that judgment was appealable, it became final no earlier than 60 days
after its entry on January 12, 2005. Thus, the February 4, 2015 filing was within
the 10-year limitations period.

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court erred in so ruling, as the statute of limitations constitutes an affirmative
defense that only the Mozaffarians were entitled to assert.
In the context of a default proceeding, the trial court’s inquiry into the
complaint’s sufficiency is necessarily confined by the defaulting party’s failure to
appear. The defendant, by defaulting, “confesses” the properly pleaded facts.
(Kim, supra, 201 Cal.App.4th at p. 281.) “But that is all the default does. . . . ‘A
defendant has the right to elect not to answer the complaint. [Citation.] Although
this may have been a tactical move by defendant, it is a permissible tactic.” (Id. at
pp. 281-282, quoting Stein v. York (2010) 181 Cal.App.4th 320, 325.)
Although the defendant’s default admits the facts alleged in the complaint,
the default cannot trigger a defense based on the statute of limitations, which must
be affirmatively and personally asserted by the defendant. Generally,
“[l]imitations periods represent a public policy about the privilege to litigate; they
relate to matters of procedure, not to substantial rights.” (Talei v. Pan American
World Airways (1982) 132 Cal.App.3d 904, 909.) The defense of the statute of
limitations is “a personal privilege which must be affirmatively invoked in the
lower court by appropriate pleading (if the defense appears on the face of the
complaint, it must be raised by demurrer; otherwise it must be specially pleaded in
the answer) . . . .” (O’Neil v. Spillane (1975) 45 Cal.App.3d 147, 156.) Failure to
assert the defense in an appropriate pleading works a forfeiture, “even when . . .
the defense appears on the face of the complaint . . . .” (Petersen v. W.T. Grant
Co. (1974) 41 Cal.App.3d 217, 220.)
The statute of limitations thus bars an action only when the statute is
affirmatively asserted by the defendant in the trial court. As our Supreme Court
has explained, because the “essence” of the forfeiture rule is “to apprise [the]
plaintiff that [the] defendant intends to rely upon that defense,” the defense is not

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cognizable absent appropriate action by the defendant. (Hall v. Chamberlain
(1948) 31 Cal.2d 673, 675, 680 (Hall).) In Hall, the defendants first offered a
statute of limitations defense in the proceedings before our Supreme Court. (Id. at
pp. 679-680.) The court concluded that their contention had been forfeited for
want of a pleading clearly asserting the defense in the trial court, stating that
“[t]here must be some expression that lateness of the commencement of the action
is a ground of defense.” (Id. at p. 680, italics added.) Similarly, other courts have
held that the defense may not be raised for the first time on appeal to show that the
complaint states no claim, even though the defense is established on the face of the
complaint. (County of Los Angeles v. Commission on State Mandates (2007) 150
Cal.App.4th 898, 912; Miller v. Parker (1933) 128 Cal.App. 775, 776-777.)
Furthermore, only the defendant may assert the defense. In Travelers
Indemnity Co. v. Bell (1963) 213 Cal.App.2d 541, 543-544, the plaintiff suffered
injuries in a car accident involving an uninsured driver. She obtained a default
judgment against the uninsured driver, pursued a claim under the “uninsured
[driver]” provision of her insurance policy for the sum awarded in the judgment,
and secured a policy-based arbitration award in her favor. (Ibid.) The insurer
filed a petition to vacate the award, contending the default judgment was invalid
due to the applicable statute of limitations. (Ibid.) The trial court granted the
petition, concluding that the “[a]ction [w]as [b]arred.” (Id. at p. 544.) Reversing,
the appellate court stated: “ [S]ince the statute is a ‘personal privilege’ to be
asserted or waived at the option of the one entitled to assert it[,] the statute must be
affirmatively invoked by him . . . .” (Id. at p. 547, italics added; see Brownrigg v.
deFrees (1925) 196 Cal. 534, 541 [“[T]he privilege of the statute [of limitations],
being a personal privilege, is deemed to be waived, unless the debtor asserts his

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right under it by demurrer or plea. [Citation.] The law will not plead the statute
for him”].)
Under these principles, the trial court erred in denying Kesherim’s request
for a default judgment on the basis of the statute of limitations. The complaint
alleges facts sufficient to state a claim on the 2005 judgment against the
Mozaffarians, as it alleges the principal terms of the judgment, and the sums
owing under it. (See Kertesz, supra, 115 Cal.App.4th at pp. 371-372, 378.) The
Mozaffarians failed to appear in the action, filed no demurrer or answer, and thus
forfeited their privilege to rely on the statute of limitations. The court could not
properly exercise that privilege sua sponte, as it was personal to the Mozaffarians.
The court thus improperly denied Kesherim’s request for a default judgment.7
The remaining question concerns the appropriate remedy. Kesherim
requested a default judgment awarding costs and postjudgment interest pursuant to
subdivisions (b) and (c) of section 585. Under those provisions, the trial court
may, in its discretion, require the presentation of additional evidence to resolve the

7 We observe that the two exceptions to the rule requiring the defendant’s
invocation of the limitations period are inapplicable here. First, a statute of
limitations defense belonging to an estate cannot be forfeited by personal
representatives of the estate named as defendants. (5 Witkin, Cal. Procedure (5th
ed. 2008) Pleading, § 1118, p. 544.) Second, the statute of limitations defense is
not subject to forfeiture when the applicable limitations period constitutes an
aspect of the substantive right underlying a claim. (Ibid.)
Here, nothing suggests that the Mozaffarians were personal representatives
of any estate. Furthermore, the 10-year limitations period set forth in section
337.5, subdivision (b), is not a substantive aspect of an action on a judgment. As
Witkin explains, when a statute “creates a right or liability unknown at common
law” and also states a limitations period, that period is ordinarily substantive. (3
Witkin, Cal. Procedure (5th ed. 2008) Actions, § 443, p. 563.) However, actions
on a judgment were recognized in the common law long before the enactment of
section 377.5. (See Ames v. Hoy (1859) 12 Cal. 11, 19.)

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request. (See § 585, subd. (d); Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2016) ¶[¶] 5:210-5:212.) As the court
did not exercise that discretion, it is appropriate to remand the matter for further
proceedings on Kesherim’s request for a default judgment.

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 DISPOSITION
The order of dismissal is reversed, and the matter is remanded for further
proceedings in accordance with this opinion. Appellant is to bear his own costs on
appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

COLLINS, J.

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