Spikes v. Ubence CA4/1

Filed 12/14/23 Spikes v. Ubence CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

KAREL SPIKES, D081249

Plaintiff,

TIFFANY UBENCE, as Successor in (Super. Ct. No. 37-2019- Interest, etc., 00028310-CU-CR-CTL) Appellant;

v.

AFSHIN KARIMI,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, James A. Mangione, Judge. Reversed and remanded. Law Office of Geoffrey T. Bentley and Geoffrey T. Bentley for Plaintiff and Appellant. No appearance for Defendant and Respondent. Tiffany Ubence, the successor in interest to deceased plaintiff Karel Spikes, appeals from an order of the Superior Court setting aside a default judgment that had been entered in her favor against defendant Afshin

Karimi. Appellant argues that the trial court did not have jurisdiction to grant the motion because it was untimely. We agree, and therefore we reverse the order. I. PROCEDURAL HISTORY Spikes filed a complaint against Karimi and The Dank House on June 3, 2019. Karimi received notification regarding the lawsuit and filed an amended answer on February 14, 2020, but apparently did not respond further. According to Karimi, he understood that the other defendant, The Dank House, had negotiated and would pay a settlement on his behalf. On June 17, 2020, Spikes filed a motion to compel responses to form interrogatories served on Karimi, and, on January 11, 2021, Spikes filed a motion for terminating sanctions against Karimi. The trial court entered a default against Karimi on June 1, 2021, upon Spikes’ request, and on October 12, 2021, the court entered judgment by default against Karimi and in favor of Spikes in the total amount of $55,525.45. Spikes died that same day, October 12, 2021. On November 23, 2021, Karimi filed a notice of motion and motion (“the motion”) to set aside the June 1, 2021, default and the October 12, 2021 default judgment, along with a memorandum of points and authorities and a declaration in support of the motion. The notice indicated that the motion would be heard on May 27, 2022. On April 29, 2022, counsel for Spikes filed a “Notice of Death” regarding Spikes. On May 6, 2022, Karimi filed an additional declaration from his former lawyer admitting fault in failing to respond to the discovery and the motion to compel discovery, and served the motion and the supporting documents on attorney Bentley, on behalf of “Plaintiff, Karel Spikes.”