Metropolitan News-Enterprise


Tuesday, February 5, 2019


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Relief Not Mandatory Under CCP §473 Where Judge Disbelieves Assertion of ‘Mistake’—C.A.

Justice Chaney Says Attorney’s Affidavit of Fault Is Ineffective Where Facts Show That Counsel Neglected to File Responsive Petition Despite Three Reminders From Opposing Counsel


By a MetNews Staff Writer


A judge was justified in denying a motion for relief from default, under the mandatory-relief provision of Code of Civil Procedure §473, where she disbelieved an attorney’s assertion, in an affidavit of fault, that the default resulted from a mistake, the Court of Appeal for this district held yesterday.

Acting Presiding Justice Victoria Chaney of Div. One wrote the opinion. It affirms Los Angeles Superior Court Judge Christine Byrd’s order denying relief to Maya Olivera from a default that was entered after she failed to respond to her former boyfriend’s petition seeking to establish paternity of their child and for sole legal and physical custody.

Byrd ordered judgment in favor of the father, Darab Cody Nakhjavanpourtalebi.

(Chaney’s opinion refers to the parties as “Maya” and “Cody.” The father is designated “Darab N.” in the caption.)

The affidavit of fault—which Byrd disbelieved—was executed by Century Park attorney Jackie Antoinette Abboud. In it, she declared that she “substituted into the case after two other attorneys had been involved in the case,” and was under the belief that a response to the petition had been filed.

Three Reminders

The judge found that prior to Nakhjavanpourtalebi’s lawyer requesting that a default be entered, the lawyer asked Abboud twice by telephone and once by email to file a response to the petition, and she failed to do so.

“Based on the evidence in the record,” Chaney said, “we have no basis to disturb the trial court’s finding on appeal,” adding:

“Code of Civil Procedure section 473, subdivision (b)’s mandatory provision is only mandatory ‘unless the [trial] court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.’ Here, the trial court found exactly that, and did not abuse its discretion in so doing.”

 The jurist went on to comment that no prejudice inured to Olivera—a drug addict against whom a domestic violence restraining order (“DVRO”) had been obtained—as the result of Byrd not setting aside the default, explaining:

“Maya does not address in her brief why the judgment should be reversed except that she believes it was entered based on her default. The trial court’s order clarifies that it considered the merits of Maya’s arguments ‘[b]ecause the best of interest of a minor child is involved….’ We have determined that the trial court did not abuse its discretion when it refused to set aside Maya’s default. Even if it were error, however, we conclude that the trial court’s consideration of Maya’s arguments on the merits would render any error harmless.”

Motion to Quash

Byrd granted Nakhjavanpourtalebi’s motion to quash subpoenas relating to his medical records. Olivera argued that these were relevant to show his addiction to marijuana, saying that in filing his petition, he tendered the issue of the parties’ respective uses of drugs.

Chaney responded that “Maya attempted to tender Cody’s medical issues, not Cody.”

Olivera also complained of Byrd’s order denying her attorney fees. Byrd explained:

“As for the fees that were incurred in connection with the DVRO proceedings, in which [Maya] did not prevail and is now restrained, Fam. Code §6344 authorizes an award of fees to the prevailing party in such proceedings…, but no law has been cited authorizing an award of fees to the losing, restrained party….

“[T]he Court finds that an award of fees to a restrained party for fees incurred in connection with that domestic violence proceeding would be contrary to the purposes of the Domestic Violence Protection Act. Respondent’s request for fees incurred in connection with the DVRO proceedings is denied.

“As for fees incurred in connection with other issues—[Maya]’s default, on her subpoenas which have been quashed, and on custody, visitation and child support, which have been denied—it is difficult to justify an award of fees in view of the Court’s rulings on the merits of these issues.”

Chaney saw no abuse of discretion, remarking:

“The record abounds with evidence that neither Maya nor Abboud pursued litigation tactics that were either reasonable or necessary, but rather wielded aggressive litigation tactics as merely one part of a multi-faceted attack on Cody.”

Abboud commented yesterday:

“I am convinced that we have a father with significant substance abuse problems who has sole legal and sole physical custody of a child.

“QUERY: If he did not have to worry that his substance abuse problems would be discovered, why not voluntarily produce the records and clear his name? We would know for sure one way or the other.

“In one of the subpoenas, I was prevented from obtaining limited information regarding father’s admission for six months into a rehab facility - i.e., only the date of admission and date of discharge to prove father’s substance abuse problems predated the custody hearing and are ongoing. How could there not be a waiver of the privilege as to this limited information since father himself admitted that information to my client, otherwise, my client would not have known about father’s admission to rehab. The Court of Appeal did not mention any of these facts in the opinion.

“I understand my client is a substance abuser herself. But my goal (and the court’s task) is to protect the best interests of the minor child, which are not served by giving custody to another parent who is a substance abuser.

“There are other relatives who are ready, willing, and better able to protect this child’s best interests.”

The case is Darab N. v. Olivera, B282972.

Nathalie Esther Amir of the Law Offices of Peter A. Lauzon represented Nakhjavanpourtalebi.


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