Filed 3/5/20 Sheikh v. Davtyan CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

MUNAZZA SHEIKH,

Appellant,

v.

LILIT DAVTYAN,

Respondent.

B286054

(Los Angeles County

Super. Ct. No. LC065552)

APPEAL from orders of the Superior Court of the County of Los Angeles, Elizabeth A. Lippitt, Judge. Affirmed.

Willard S. Bakeman for Appellant.

Cohen & Cohen, Barry L. Cohen and Kerry A. Cohen for Respondent.

* * * * * * * *

In 2003, after vexatious litigant, Dr. Jehan Zeb Mir, was sued for nonpayment of medical equipment he purchased, he obtained permission to file a cross-complaint against his purported medical practice managers, respondent Lilit Davtyan and her mother. The cross-complaint alleged they converted the medical equipment for their own use, among other claims. After Ms. Davtyan failed to answer, Dr. Mir obtained a default judgment against her. He later assigned that judgment to appellant Munazza Sheikh.

Ms. Davtyan first learned about the judgment against her in 2016, 10 years after it was entered, when Ms. Sheikh made efforts to enforce the judgment. Ms. Davtyan successfully moved to vacate the judgment and have the cross-complaint against her dismissed. Ms. Sheikh appeals the order granting that motion, and the subsequent order denying her motion for a new trial. We affirm.

BACKGROUND

This is what we discern from the limited record before us.

In 2003, Dr. Mir was sued by Alamo Medical Supply and Equipment for unpaid balances owed on a contract to purchase medical equipment.

Because he is a vexatious litigant, Dr. Mir moved for a prefiling order permitting him to file a cross-complaint against Alamo, Ms. Davtyan, her mother Anush Davtyan, and their business A.L.R. Family Health Center.

The trial court granted Dr. Mir’s motion December 8, 2003. The minute order for that hearing shows both Ms. Davtyan and her mother were present at that hearing, not represented by counsel. The minute order also records that “[t]he cross-complaint is filed this date.” The minute order does not state that Ms. Davtyan or her mother made a general appearance, or that either of them was served with a copy of the cross-complaint. The December 8, 2003 proceedings were not reported.

The cross-complaint alleged that Dr. Mir subleased a medical office on Vermont Avenue in Los Angeles from A.L.R., and contracted with A.L.R. to manage his medical practice. The Davtyans were A.L.R.’s managers. Dr. Mir purchased equipment from Alamo, and Alamo misdelivered some of the equipment to a different medical office belonging to A.L.R. in North Hollywood. The cross-complaint alleged A.L.R. and the Davtyans converted the equipment to their own use. They also failed to provide an accounting of their management of his medical practice, and embezzled money from his practice.

A proof of service was filed on February 24, 2004, executed by a registered process server, attesting that Lilit Davtyan was personally served with the summons and cross-complaint on February 9, 2004 at 2:30 p.m. at the Vermont Avenue office. The process server’s declaration was dated a year before the claimed date of service, on February 11, 2003.

Ms. Davtyan did not answer the cross-complaint, and her default was entered on June 15, 2004. (Defaults for Anush Davtyan and A.L.R. were also entered. They are not parties to this appeal.) Dr. Mir obtained a default judgment of $171,064.37 in July 2006, which was subsequently corrected by the court in October 2007. In July 2007, Dr. Mir assigned the judgment to Ms. Sheikh.

Almost nine years later, in May 2016, the court issued an abstract of judgment against Ms. Davtyan in favor of Ms. Sheikh. The abstract stated that Ms. Davtyan’s last known address was on Sixth Street in Burbank, California, and that notice of entry of judgment was served upon her at this address.

A month later, in June 2016, Ms. Sheikh filed an application to renew the judgment. The application stated Ms. Davtyan’s last known address was on Genesta Avenue in Encino, and the application was served upon her there. The judgment was renewed, and notice of renewal of the judgment was mailed to Ms. Davtyan at the Genesta Avenue address in August 2016.

Ms. Sheikh obtained a writ of execution in October 2016, and later filed an application for the sale of the Genesta Avenue home to satisfy the judgment. The application was served by mail on Ms. Davtyan at the Genesta Avenue address in December 2016.

In August 2017, Ms. Davtyan filed an ex parte application to specially set for hearing a motion to set aside entry of default and vacate the default judgment. The court granted the ex parte application, and set the motion for hearing on August 17, 2017, the same day that the application for sale was to be heard.

Ms. Davtyan’s motion contended the judgment was void on its face, because she was never served with the summons and cross-complaint. Alternatively, she argued for equitable relief from the judgment, on the basis that she was never served, had a meritorious defense, and was diligent in seeking relief from the judgment.

Ms. Davtyan declared she had no knowledge of the action or judgment until November 2016, when Ms. Sheikh levied on her home. She was only 19 years old at the time the cross-complaint was filed, and she was not involved with the management of A.L.R. A.L.R. Management, Inc. was her mother’s business, and Ms. Davtyan had no ownership interest in the business. A.L.R.’s articles of incorporation and information filed with the Secretary of State did not state Ms. Davtyan was an officer or director of A.L.R.

Ms. Davtyan sometimes visited A.L.R.’s Vermont Avenue office to perform secretarial work such as answering phones, but she worked there only a few hours a month. She had nothing to do with Dr. Mir’s business. After June 2003, she never visited the Vermont office location. (The process server’s declaration stated Ms. Davtyan had been served on February 9, 2004, at 2:30 p.m. at the Vermont Avenue office.)

In June 2003, Ms. Davtyan started attending Glendale Career College, studying to become a surgical technician. She attended a clinical rotation on February 9, 2004, the day she was allegedly served. Her rotation began around 8:00 or 9:00 a.m. and ended eight or nine hours later. She could not have been served that day because of her schedule. She testified, “I was not served with any papers . . . that day or any other time before November 2016 when I received some papers in the mail at my house on Genesta, in Encino.” Attached to her declaration was an attendance report from Glendale Career College, showing that she was in class for eight hours on the day she was allegedly served.

As for the papers that were allegedly served at the Sixth Street address, Ms. Davtyan sold that home in March 2006, and did not receive any of those mailings. After receiving documents in November 2016 at her home on Genesta in Encino, she immediately sought the assistance of counsel. She was forced to substitute new counsel after her original attorney made little progress in locating the court records for the case.

Dr. Mir, in propria persona, filed an opposition to the motion, arguing there was a presumption of proper service, and Ms. Davtyan’s “self serving” declaration did not rebut the presumption. He also argued Ms. Davtyan submitted to the jurisdiction of the court by appearing at the hearing on December 8, 2003, on his application for leave to file the cross-complaint.

Dr. Mir declared Ms. Davtyan was employed full time as a secretary at the Vermont Avenue office from October 2002 until April 2003.

Dr. Mir filed a “notice of list of witnesses” identifying several witnesses he intended to call at the August 17 hearing on the motion for relief from default, including Ms. Davtyan, the process server, and the registrar of Glendale Career College.

At the August 17, 2017 hearing, counsel for Ms. Sheikh admitted that Ms. Davtyan was not served with the cross-complaint at the December 2003 hearing she attended on Dr. Mir’s motion for permission to file the cross-complaint. Ms. Sheikh represented that the process server was available to testify at the hearing. The court stated: “I appreciate the effort of the process server, but 14 years later and given the specific facts of this case, I’m just not persuaded.”

The trial court granted the motion, finding Ms. Davtyan was not served with the summons and cross-complaint, and that she was not involved in the operations of A.L.R. The court acknowledged the school transcripts were not authenticated, but found they were sufficiently reliable when considered with Ms. Davtyan’s declaration. The court recalled and quashed the writ of execution, and dismissed the cross-complaint without prejudice.

Dr. Mir and Ms. Sheikh filed a combined motion for a new trial, based on “newly discovered” evidence. They included a declaration from the campus director of Glendale Career College testifying that clinical rotations started at 6:30 a.m. and lasted only seven and a half hours (presumably ending at 2:00 p.m.). (The proof of service showed Ms. Davtyan had been personally served at Dr. Mir’s medical office on Vermont in Los Angeles at 2:30 p.m.) They also included a police report from 2003 where Ms. Davtyan told police officers she worked as a medical assistant at A.L.R. They also included a declaration from the process server testifying that the proof of service was a true and correct copy of the original.

Dr. Mir and Ms. Sheikh also argued they were denied a fair hearing because Dr. Mir had subpoenaed the process server and director of the career college to testify at the hearing, but the court “abused its discretion” by not allowing them to testify.

The trial court denied the motion for new trial. The court found that nothing prevented the moving parties from securing declarations (rather than live testimony) in support of their oppositions to Ms. Davtyan’s motion for relief from default, and the “new” evidence did not dispute the factual basis for the court’s orders granting relief from default, quashing the writ of execution and dismissing the cross-complaint.

This timely appeal followed.

DISCUSSION

1. Insufficiency of the Record and of Appellant’s Briefs
2.
Ms. Sheikh filed an opposition to Ms. Davtyan’s motion for relief from default, but it was not included in her notice designating the record on appeal, and it was omitted from the clerk’s transcript. After the respondent’s brief was filed, Ms. Sheikh filed a request for judicial notice which included a copy of the opposition. Ms. Davtyan objected on the basis that the request was filed after respondent’s brief was filed. While we may take judicial notice that Ms. Sheikh filed an opposition, we may not take judicial notice of its contents, and decline to augment the record to include it, as to do so would prejudice respondent. (Day v. Sharp (1975) 50 Cal.App.3d 904, 914 [discussing judicial notice]; see also Toenniges v. Griffeth (1959) 169 Cal.App.2d 717, 725-726 [proper to deny belated motion to augment record].)

Appellant’s briefs discuss many irrelevant facts (such as Ms. Davtyan’s mother’s alleged criminal history), do not make adequate citations to the record, and the record citations appellant did provide often do not support the claims made in the briefs. For example, the opening brief asserts that at the December 8, 2003 hearing, the clerk file-stamped the cross-complaint in the presence of Ms. Davtyan and her mother. The cross-complaint bears a file stamp for that date, but nowhere in the record is there any support for the contention that it was filed in Ms. Davtyan’s presence. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [we may disregard any claims when no appropriate reference to the record is furnished]; see also Cal. Rules of Court, rule 8.204(a)(2)(C) [an appellant must recite in the opening brief all “significant facts”]; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)

3. The Claims Fail on the Merits
4.
The court has the equitable power to set aside a judgment for extrinsic fraud or mistake. A party moving for relief from judgment on this basis must show the fraud or mistake, reasonable reliance on it, and the existence of a meritorious defense. The party must be reasonably diligent in seeking relief from the judgment. (County of Fresno v. Ruiz (1998) 67 Cal.App.4th 539, 546.) A false proof of service may constitute extrinsic fraud or mistake. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181.) We review the trial court’s ruling for abuse of discretion. (County of Fresno v. Ruiz, at p. 546.)

We find no abuse of discretion. Although “Evidence Code section 647 provides that a registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390), the proof of service filed here is questionable on its face. The declared date of service of process was clearly incorrect, stating it was signed in 2003, a year before the alleged date of service. (Ibid. [proof of service that does not comply with the law governing service “cannot be construed as attesting to authorized-agent personal service”]; see also Code Civ. Proc., § 417.10 [proof of service must be by affidavit]; § 2015.5 [affidavit under penalty of perjury must include date of signature].)

Ms. Davtyan rebutted any presumption the proof of service was reliable through her declaration denying that she was ever served with the summons and cross-complaint, which was corroborated by school attendance records. (American Express Centurion Bank v. Zara, supra, 199 Cal.App.4th at p. 390.) Moreover, she adduced evidence that she had a meritorious defense (that she was not involved in her mother’s business), and that she diligently sought relief from the judgment by retaining counsel in November 2016 when Ms. Sheikh sought to enforce the judgment, which was when Ms. Davtyan learned of it for the first time. (County of Fresno v. Ruiz, supra, 67 Cal.App.4th at p. 546.)

We are not persuaded that the court acquired jurisdiction over Ms. Davtyan by virtue of her appearance at the December 2003 hearing on Dr. Mir’s motion for permission to file the cross-complaint. It is undisputed that the cross-complaint was not served upon her at the hearing. And without a reporter’s transcript or its equivalent, we cannot discern whether Ms. Davtyan made a general appearance sufficient to confer jurisdiction over her. (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52-53 [a general appearance requires the defendant’s active participation in the action or request for affirmative relief].)

Ms. Sheikh also contends that she was denied due process by not having enough time to oppose Ms. Davtyan’s motion. Any claim of error on this basis is necessarily forfeited, as the record discloses that all parties agreed to the court’s briefing schedule.

Finally, we see no error in the court’s ruling on the new trial motion. No explanation was offered for why Dr. Mir’s witnesses (the process server and a representative from Ms. Davtyan’s school) could not have provided declarations in opposition to the motion for relief from default, as they were apparently available to testify at the August 17 hearing. In any event, their proffered evidence did not compel a different result. The process server in his declaration did not testify he served Ms. Davtyan or explain the inconsistency between the alleged date of service and the date on the proof of service, stating only that the proof of service in the record was the true and correct one that he completed. The Glendale Career College representative testified in his declaration to a somewhat different class schedule than that described in Ms. Davtyan’s declaration, but not that she was absent on the alleged day of service. (Tunmore v. McLeish (1919) 45 Cal.App. 266, 269 [an irregularity in the proceedings must affect the moving party’s substantial rights]; see also Horowitz v. Noble (1978) 79 Cal.App.3d 120, 137-138 [evidence must be new, material, and the party presenting it must have exercised reasonable diligence in its discovery and production].)

5. Sanctions Motions
6.
Both parties moved for sanctions against the other party. Sanctions are generally disfavored, and we decline to award them here. (Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 129.)

DISPOSITION

The orders are affirmed. Respondent is awarded her costs on appeal.

GRIMES, J.

WE CONCUR:

BIGELOW, P. J.

WILEY, J.