Bentley v. Karimi CA4/1

Filed 12/14/23 Bentley v. Karimi CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

GEOFFREY T. BENTLEY, D081266

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2019- AFSHIN KARIMI, 00027530-CU-CR-CTL)

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Richard S. Whitney, Judge. Reversed and remanded. Vandeveld Law Offices and Thomas J. Vandeveld III for Geoffrey T. Bentley, Plaintiff and Appellant. No appearance for Defendant and Respondent. Geoffrey Bentley appeals from an order of the Superior Court setting aside a default judgment that had been entered in his favor against defendant Afshin Karimi. Bentley argues that the court was without discretion to grant the motion because it was not timely served. We agree, and therefore we reverse.

I. PROCEDURAL HISTORY Bentley filed a complaint against defendant Karimi and The Dank House on May 28, 2019. Karimi filed an amended answer in February 2020, but apparently did not respond to discovery. On June 8, 2021, at Bentley’s request, the trial court entered a default against Karimi. On October 25, 2021, the trial court entered judgment by default against Karimi and in favor of Bentley in the total amount of $96,125.95. On November 30, 2021, Karimi filed a motion to set aside the June 8, 2021, default and the default judgment dated October 25, 2021 (“the motion”), as well as a memorandum of points and authorities and his own declaration in support of the motion. The notice indicated the motion would be heard on June 24, 2022. However, Karimi did not serve Bentley or his counsel with the motion and its accompanying pleadings until May 10, 2022. That same day, May 10, 2022, Karimi also filed a supplemental memorandum of points and authorities in support of the motion and a declaration executed by his former lawyer, Scott N. Salmu, admitting fault in failing to respond to the discovery and the motion to compel discovery. In the motion, Karimi contended that the default and the judgment were “the result of the mistake, inadvertence, and neglect of his attorney, Scott N. Salmu,” and in the supporting documents, he explained further that he was often unable to reach Salmu and that he had not seen any of the discovery requests that led to the default judgment. In the corresponding declaration, Salmu asserted that “[t]he default and default judgment were entered through my mistake, and/or inadvertence, and/or neglect in that I failed to timely respond to discovery propounded by Plaintiff, received the filings of Plaintiffs motion to compel discovery responses and failed to file any