2014-00158827-CU-NP

Junemarie Friedrich vs. Dmitriy Ormanzhi

Nature of Proceeding:    Motion to Set Aside Default

Filed By:   Griffin, Ryan D.

Defendant Dmitriy Ormanzhi’s Motion to Set Aside Default entered April 24, 2014 is
granted.

Plaintiff originally brought this action for malicious prosecution, arising from an
underlying judgment in her favor after a two day trial.

Defendant Ormanzhi was personally served with summons and complaint on March
21, 2014.  Defendant was then served with discovery on April 15, 2014.  On May 8,
2014 defendant hired an attorney and on  May 16, 2014 defendant filed a special
motion to strike (Anti-SLAPP), a demurrer, and motion to strike the Complaint.  The
defendant’s motions were accepted for filing because at the time no request for default
or default was entered into CCMS.  On May 23, 2014 court staff performed the data
entry for the proof of service of the summons and complaint and request for default.
The data entry clerk backdated the filing of the proof of service and request for entry of
default to April 24, 2014.   Default was entered retroactive to April 24, 2014. No default
judgment has been entered.            Defendant admits he was personally served with the documents on March 21, and that
he knew the significance of the summons and complaint based on his experience in
prosecuting the underlying complaint.    He states that he called co-defendant Fayek
on the date he was served and asked her husband if she had been served.  Her
husband told defendant “No” but that he would get back to him if she was.  Plaintiff
asked Ortiz, a non-lawyer who represented him in the underlying action, about the
lawsuit.  Ortiz drafted a letter to plaintiff’s counsel and Defendant states that he also
sent a copy of this letter to plaintiff’s counsel and demanded that his wife be dropped
from the case.  Defendant states he hoped sending this letter to counsel for plaintiff
would open up dialogue on the case.  Plaintiff’s counsel never responded to the letter.
Defendant received discovery requests on April 15, 2014 and believed that this meant
that any date for response to the Complaint was extended to the date the discovery
requests were due.  Defendant also states that Ortiz told him that filing bankruptcy
would relieve him from the responsibility of filing an Answer.  He does not state that he
ever filed for bankruptcy.  Defendant states that defendant Fayek later told him that her
attorney told her that bankruptcy would not prevent the entry of default.  (Declaration of
Dmitriy Ormanzhi)

This motion was filed June 4, 2014, within two weeks of the entry of the default in
CCMS.   The Court is granting relief pursuant to CCP 473(b) based on defendant’s
belief that filing an Answer was not required because plaintiff served discovery
requests which moving party reasonably believed would extend the date to file an
Answer, and because he had communicated with plaintiff’s counsel with no response.

A statement of damages must be served at least 30 days before the default is entered.
Here, it appears that the entry of the default was void under the case of Plotitsa v
Superior Court (1983) 140 Cal.App.3d 755, 759.  Thus, even if the court denied the
motion to set aside the default, no default judgment could ever be entered because
defendant never received notice of the amount of damages sought in this case.  The
request for entry of default contains no amount sought as damages.  The Complaint
requests no amount of damages, only “compensatory damages according to proof.”
There is no statement of damages attached to the proof of service and the proof of
service does not reflect service of any statement of damages.   If the complaint does
not provide notice of the amount of damages sought, a statement of damages must be
served personally and must be served 30 days before entry of default. Plotitsa v
Superior Court (1983) 140 Cal.App.3d 755, 759.

Defendant is not required to present a proposed pleading because they have already
been filed with the court on May 16, 2014.  However, since they were filed at a time
later determined to be when in default, the hearings on these pleadings challenging
the Complaint shall be renoticed pursuant to CCP 1005(b).

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.