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Court of Appeal:
Judge Properly Denied Relief to Man He Found to Be Lying
$633,380.44 Default Judgment Based on Failure to Repay $85,000 Loan Remains Intact
By a MetNews Staff Writer
The Court of Appeal for this district yesterday declined to relieve a realtor of a $633,380.44 judgment against him stemming from his failure to repay an $85,000 loan made to him by a teenager, half his age, whom he had befriended.
Treble damages, punitive damages, interest, and attorney fees caused the award to swell from the amount of the loan.
Div. Two, in an unpublished opinion by Justice Victoria M. Chavez, said that Los Angeles Superior Court Judge Mark A. Young “reasonably found” that defendant Eymun Talasazan “was not entitled to relief from default and the default judgment.”
On May 31, 2022, Young denied a motion by Talasazan pursuant to Code of Civil Procedure §473(b) based on “mistake, inadvertence, surprise, or excusable neglect.”
The default judgment had been entered on Jan. 5, 2022, and a motion for relief was filed on Jan. 5, 2022.
In seeking relief, Talasazan maintained that service of the summons and complaint on May 7, 2021, at 269 S. Beverly Dr. Unit 469, in Beverly Hills—a private mailbox—was ineffective because he had not used that address in the past four years.
Wrong Address
Young said in his minute order:
“[T]he Court must note that in an unrelated action…, Talasazan represented in multiple filings throughout 2021 that his address was the same Beverly Hills address….The Court will take judicial notice of such filings….This evidence contradicts Defendant’s argument that he had not used this address in the past four/two years. The Court therefore concludes that the Beverly Hills address was current throughout 2021. This evidence also demonstrates that Defendant is not credible as a witness with respect to this motion.”
On July 2,2021, plaintiff Eliyahu Cohen’s Beverly Hills lawyer, Rafi Moghadam, personally served Talasazan at the Santa Monica courthouse, Young noted, but added:
“Defendant knew about the lawsuit prior to the personal service.”
Attached to a declaration by Cohen was a print-out of text messages he and Talasazan had exchanged in June 2021 reflecting the defendant’s awareness of the litigation.
The judge remarked that this “shows a general lack of diligence in responding” to the lawsuit.
Chavez said in yesterday’s opinion:
“The foregoing evidence directly refutes appellant’s statements regarding how early he knew of this lawsuit and received documents filed therein. Given the evidence clearly controverts appellant’s attestations, the trial court reasonably found appellant was not a credible witness for his motion….Here, the court’s assessment of appellant’s credibility is based on substantial evidence. The court’s determination on this matter is therefore entitled to deference. Accordingly, the court did not err in denying appellant relief from the default under section 473.”
Settlement Claimed
Talasazan contended that he did not seek relief from default sooner than he did because he had negotiated with Cohen’s father and brother to as to repayment terms and did reach a settlement with the father. Young responded:
“Defendant has the burden to show that Cohen’s father had such agency, actual or ostensible, based on Cohen’s conduct….Defendant does not explain the basis of his belief for Plaintiffs family’s apparent authority to negotiate on Plaintiffs behalf. Cohen confirms that Talasazan reached out to his family, but when he found out, he instructed his family to not discuss the case with Talasazan.…Cohen had already instructed Defendant to contact his counsel. Defendant was aware of this suit, and therefore counsel’s contact information. Given this instruction, Defendant should have recognized that Cohen’s counsel had authority to settle the case and engaged in settlement negotiations with them….
“The Court does not find that the failure to respond or move to vacate earlier was the result of mistake, inadvertence, surprise, or excusable neglect.”
Chavez said that Young “reasonably found appellant failed to show he mistakenly believed respondent’s father, a third party, had authority to settle the case and had in fact done so with appellant.”
She explained:
“While appellant and respondent’s father and brother had conflicting accounts of their exchanges, the court reasonably determined respondent’s evidence was more credible, particularly in light of its finding appellant was not a credible witness in the proceeding- Respondent’s text messages impugned appellant’s claim he mistakenly believed respondent’s father had authority to negotiate a settlement.”
Amount of Damages
Damages were awarded based on the amount of the loan—$85,000—plus $33,976.71 in prejudgment interest, punitive damages in the amount of $250,000, and costs of $806.23, plus, pursuant to Penal Code §496(c), $255,000 in treble damages and attorney fees of $8,597.50. That section says that “[a]ny person who has been injured by a” theft “…may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney’s fees.”
Talasazan argued on appeal:
“Unwitting timeliness mistakes by litigants should not lead to egregiously disproportionate judgments due to the misapplication of service of process rules and the inappropriate imposition of treble and unsupported punitive damages in a civil contract dispute. The trial court errors further provided a windfall plaintiff with unclean hands far beyond any commercial norm, without probing the one sided allegations. This is not justice and must be reversed.”
Chavez wrote:
“A defendant may challenge a damages award as excessive in an appeal from a default judgment….
“Appellant, however, never appealed from the underlying default judgment.”
She added that “the order denying the motion for new trial may not be reviewed because appellant never appealed from the underlying default judgment.”
Equitable Powers
Talasazan also sought relief in the trial court based on equitable considerations. Young denied the request, saying:
“…Defendant has not supported his fraud argument regarding his negotiations with Cohen’s father, and has provided false information to the Court in his declaration….Defendant has not articulated a satisfactory excuse for not presenting a defense earlier, and his credibility is negligible. Accordingly, equitable relief is unavailable in this matter.”
Chavez said in a footnote that “appellant does not raise any arguments regarding equitable relief here,” obviating a need for discussion.
The case is Cohen v. Talasazan, B322259.
Moghadam represented Cohen on appeal. Attorney John William Sullivan, whose office is in Encino, acted for Talasazan.
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