Tuesday, June 16, 2020
Justice Wiley Observes That Lawyers in High-Stakes Cases Seeking to Economize Should Not Do So by Neglecting to Have a Court Reporter at Hearings, Jeopardizing Chances on Appeal
By a MetNews Staff Writer
The Court of Appeal for this district yesterday affirmed a $1.9 million default judgment, holding that the trial court properly denied a motion for relief from default because the appellant failed to back up his allegation that there was a deficiency in the service, counseling that a party is handicapped on appeal where services of a court reporter were not engaged.
“When appreciable sums are in play, it is mysterious why lawyers on both sides think the small cost of court reporting is a good cost to avoid,” Justice John Shepard Wiley of Div. Eight wrote. “We publish this opinion in part to discourage misplaced thrift.”
The appellant is Arie Abekasis, a homebuilder/real estate investor who sued Pacifica First National, Inc. and others on Nov. 23, 2015. His causes of action included breach of contract and fraud.
Proof of Service
Pacifica and others then brought a cross complaint against Abekasis and others, also alleging breach of contract, fraud, and other wrongs. A proof of service showed that Leslie Richards, attorney of record for Abekasis and co-defendant Brent Silver Construction Inc., had been served with the cross complaint.
(Richards, who has been suspended from practice for nonpayment of State Bar dues, is currently facing disciplinary charges.)
Abekasis did not file an answer to the cross complaint; his default was entered; he moved for relief from default under the discretionary provision of Code of Civil Procedure §473(B).
Los Angeles Superior Court Judge Michael Linfield on March 14, 2017, denied relief to Abekasis (and other cross defendants) “because of counsel’s undue and unexplained delay in filing the motion.” He added that “even if the Court did not deny the motion on this ground”—only one cross-defendant—and it wasn’t Abekasis—made a showing sufficient to rebut the presumption of service created by the proof of service.
Judgment was entered against Abekasis (jointly and severally with Brent Silver Construction) on April 16, 2019 in the amount of $1,900,258.65.
In affirming, Wiley said:
“The trial court was right to deny the motion to set aside the default. Abekasis did not prove the service on Richards was bad. Pacifica put a proper proof of service form into evidence. The burden on Abekasis then was to prove this apparently-proper document was invalid….His motion contained no evidence from him or Richards to rebut the form’s weight.”
No Richards Declaration
He commented that “[t]he key witness about the validity of service on Richards was Richards,” from whom there was no declaration, and Abekasis’s own declaration said that a company of his, Diditan Group, also a cross-defendant, had not been served, but he “did not say he personally had never been served.”
“At the moment of truth, the two people who would know about the vital issue remained mum.”
Contentions Lack Merit
One by one, Wiley pithily disposed of Abekasis’s “12 invalid arguments.”
Among the points the jurist addressed were these:
•“Fourth, Abekasis cites Fasuyi v. Permatex, Inc. (2008)…, and says it means any doubts about whether to grant relief from default must be resolved in his favor. But there were no doubts here.”
•“Tenth, Abekasis submits the absence of a reporter’s transcript is not fatal to his appeal. What is fatal to Abekasis’s appeal is the invalidity of his motion. Because he chose not to retain a court reporter, the slim text of that motion is what we have to go on, and that motion lacked merit.”
•“Twelfth, Abekasis suggests ‘[t]he size of default [judgments] needs to be [reined] in.’ ‘Those of us who have been in the legal field for decades have seen the size of default judgments rise many times more than the consumer price index.’ ‘The entry of gargantuan default judgments has become an epidemic.’ The record identifies no trial court mistakes and does not support these claims. The record includes neither the filings proving up the judgment nor a complete copy of the cross-complaint so that we might know the scope of damages claimed.”
The case is Pacifica First National, Inc. v. Abekasis, B298292.
Encino attorney Robert F. Smith represented Abekasis. Kenneth S. Grossbart and Bruce D. Rudman of the North Hollywood firm of Abdulaziz, Grossbart & Rudman acted for Pacific.
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