Couple Allegedly Burned by Immigration Consultant Entitled to Default Judgment

Wednesday, October 24, 2018

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Couple Allegedly Burned by Immigration Consultant Entitled to Default Judgment—Appeals Court

By a MetNews Staff Writer

DALILA C. LYONS

Los Angeles Superior Court Judge

The Court of Appeal for this district has held that a couple who sued an immigration consultant for botching the wife’s green card application is entitled to a default judgment because the unanswered complaint and spurned requests for admissions were sufficient to make a prima facie case for their asserted damages.

The plaintiffs, Arash Shamsian and his wife Negar Omidakhsh, sued the immigration consultant whom they hired to assist them with the petition, Allison Lord, as well as her partner William A. Butcher and their company, William A. Butcher Company, Inc.; the company operated under the name “The Lord’s Immigration Consultant Agency.” The complaint alleged various tort causes of action, as well as 19 violations of the Immigration Consultants Act (Bus. & Prof. Code §22440 et seq.).

All three defendants failed to answer the complaint. However, Los Angeles Superior Court Judge Dalila C. Lyons thrice declined to order entry of a default judgment against them, finding that the plaintiffs had failed to prove any damages.

Plaintiffs’ Allegations

Omidakhsh, a Canadian, wanted to become a permanent resident in order to take a doctoral fellowship at her school which required such status. Her husband, a U.S. citizen, wished to sponsor her application.

The two hired the defendants to assist them, but the consultants filed an application without the couple’s knowledge, which was rejected. When they spoke with Lord, according to their allegations, she berated them and then stopped communicating with them altogether.

The pair hired an immigration attorney who was able to help Omidakhsh obtain her green card, but the process took two years. During that time, the plaintiffs allege they suffered severe stress and resulting health problems.

Because personal injury claims lay at the heart of the matter, the plaintiffs served statements of damages on the defendants, as required in such cases by Code of Civil Procedure §425.11. Combined, they sought damages and penalties of more than $9 million, as well as $10 million each in punitive damages.

Trial Court Proceedings

Lyons’ clerk accepted the plaintiffs’ request for default of Lord and Butcher, but initially rejected the request as to the company.

After default was entered for the two individual defendants, the plaintiffs sent requests for admissions as to their emotional distress damages, past and future medical bills, lost earnings, and civil penalties. They also requested an admission that the defendants had the ability to pay $10 million in punitive damages.

The defendants did not respond.

The clerk later entered the default for the corporate defendant. Lyons deemed admitted the matters in the requests for admission as to the company, but not as to Lord and Butcher, who she noted had already had defaults entered when the requests were served.

Requests for Judgment

In response to the first request for a default judgment, the judge said:

“Plaintiffs fail to provide sufficient evidence to substantiate their damages. While Plaintiffs submit that they paid $2,995.00 to Defendants and that Omidakhsh[] incurred medical bills related to her hypertension and preeclampsia of $43,272.24, no other further evidence is provided to substantiate Plaintiffs’ asserted damages. And Plaintiffs request $50,000.00 for medical expenses despite the evidence showing medical expense of $43,272.24. Plaintiffs provide no further evidence substantiating any claims for past or ongoing emotional distress and pain and suffering, such as visits to health care professionals for relief of such emotional distress. And Plaintiffs provide no evidence in support of the claims for future medical expenses, lost earnings, or future lost earning capacity. Thus, Plaintiffs’ request for entry of default judgment is unsupported by the evidence and cannot be entered.”

She characterized the second request for entry of default judgment a renewal of the first one, denying it on the ground that the plaintiffs failed to show evidence of the defendants’ ability to pay punitive damages.

Action Dismissed

Dismissing the case after the third such request, she declared:

“This is Plaintiffs’ third request for entry of default judgment. Plaintiffs again request excessive and unsubstantiated damages that appear to be nothing more than thinly veiled requests for punitive damages. The Court has already addressed this issue multiple times, but Plaintiffs’ counsel still argues for the propriety of [punitive damages] in his supporting declaration.…In this request although Plaintiff[s] [have] lowered [their] damages request to $7,239,982.24 [by omitting the request for punitive damages,] [they] still fail[] to cure the deficiencies.

“Accordingly, after the repeated requests for entry of default judgment and failure to obtain such entry, pursuant to California Rules of Court Rule 3.110(h) the request for entry of default judgment is DENIED….”

Segal’s Opinion

Justice John L. Segal on Monday explained Div. Seven’s reversal of the order for dismissal, saying in an unpublished opinion:

“The trial court found Shamsian and Omidakhsh had not proved any damages. Not true. For example, the admitted allegations of the complaint and the declarations of Shamsian and Omidakhsh established they were entitled to recover the $2,995 they paid to the defendants and to an award of noneconomic damages. Both Shamsian and Omidakhsh described in detail the toll the defendants’ conduct had taken on their health and well-being, and how the defendants’ conduct had negatively affected their emotional and physical conditions. The declarations of Shamsian and Omidakhsh were more than sufficient to support a substantial award of noneconomic damages.…

“Shamsian and Omidakhsh also established they were entitled to compensatory damages against William A. Butcher Company, Inc. as ‘conclusively established’ by the deemed admitted requests for admission….”

He added:

“Shamsian and Omidakhsh also established they were entitled to civil penalties and attorneys’ fees under the Act. The Act prohibits an immigration consultant from, among other things, making false or misleading statements to a client, making oral promises or guarantees, and stating the consultant can obtain special favors from, or has special influence with, government officials. (Bus. & Prof. Code, § 22444.) Lord and Butcher (allegedly and admittedly) did all those things.”

Rule 3.110(h)

The jurist continued:

“Rule 3.110(h) states: ‘When a default is entered, the party who requested the entry of default must obtain a default judgment against the defaulting party within 45 days after the default was entered, unless the court has granted an extension of time. The court may issue an order to show cause why sanctions should not be imposed if that party fails to obtain entry of judgment against a defaulting party or to request an extension of time to apply for a default judgment within that time.’…

“The trial court never issued an order to show cause. Before the court dismissed their complaint, Shamsian and Omidakhsh were entitled to formal notice and an opportunity to show cause why, even if they were unsuccessful in obtaining a default judgment on the third attempt, the court should nevertheless not dismiss their case. The failure to issue an order to show cause as required by rule 3.110(h) deprived Shamsian and Omidakhsh of the opportunity to reply under rule 3.110(i).”

The opinion affirms Lyons’ ruling declining to deem admitted the matters in the requests for admission as to Lord and Butcher.

“A defendant in default has no rights or obligations in the litigation other than the right and the obligation to make a motion to set aside the default,” Segal explained.

The case is Shamsian v. William A. Butcher Company, Inc., B284443.

Sebastian M. Medvei of Medvei Law Group of Los Angeles argued for the plaintiffs. The defendants did not appear.

The California Secretary of State’s Office website shows the William A. Butcher Company as having been dissolved in August 2016.

Negar Omidakhsh and Arash Shamsian are seen at their wedding on Aug. 31, 2012. The Court of Appeal held Monday that they are entitled to judgment against an immigration outfit that allegedly failed to obtain a green card for Shamsian.