Alperstein v. Ostermeier
Filed 2/3/06 Alperstein v. Ostermeier CA2/2



NOT TO BE PUBLISHED


California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA





SECOND APPELLATE DISTRICT






DIVISION TWO






BYRON ALPERSTEIN,

Plaintiff and Respondent,

v.

ANTON OSTERMEIER,

Defendant and Appellant.
B182097

(Los Angeles County

Super. Ct. No. SC073544)


APPEAL from a judgment of the Superior Court of Los Angeles County.

Jacqueline A. Connor, Judge. Affirmed.

Tony L. Cogliandro, David B. Kahn for Defendant and Appellant.

David M. Shaby & Associates, John J. Jackman for Plaintiff and Respondent.

___________________________________________________

Appellant Anton Ostermeier contends the trial court should have granted his belated motion to set aside a default judgment taken against him (Code Civ. Proc., § 473)[1] by respondent Byron Alperstein, appellant's partner in an aircraft ownership and use agreement. The somewhat vague declarations in support of appellant's request for relief based on attorney abandonment reveal that the attorney representing him on prior matters had demanded a retainer in the present matter, which appellant had failed to send him, and there was no evidence that appellant had contacted his purported attorney for approximately two years during the litigation. In view of appellant's lack of diligence and the lack of obligation by former counsel to work on a new and different matter absent a retainer, the trial court did not abuse its broad discretion in denying appellant's request for equitable relief.

FACTUAL AND PROCEDURAL SUMMARY

In April of 1991, respondent purchased a T-28 classic aircraft. Several months later, he and appellant agreed in writing to a joint venture for the primary purpose of sharing ownership, use, maintenance and expenses related to the aircraft. Thereafter, appellant caused substantial damage to the aircraft by permitting an unauthorized pilot to fly the aircraft, at a time when it was uninsured, and during which time the engine malfunctioned and the aircraft crash landed in Torrance.

Appellant denied respondent access to the aircraft and took exclusive control of the joint venture books and accounts for his sole use and enjoyment of the aircraft. Appellant then removed the aircraft from its designated location in Santa Monica and secreted it, refusing respondent's repeated requests to inspect it or reveal its location. Respondent later discovered the aircraft had been moved to a hangar in Chino. The aircraft was eventually seized pursuant to a writ of execution and ultimately sold at auction.

In August of 2002, respondent filed an action against appellant for dissolution of the aircraft partnership, breach of contract, breach of fiduciary duty, and breach of the implied covenant of good faith and fair dealing. On November 8, 2002, default was entered in this matter, and on June 10, 2003, judgment was entered. The judgment provided, in pertinent part, for termination of the joint ownership agreement between the parties, judgment in favor of respondent in the amount of $162,500 (representing one-half the value of the aircraft), prejudgment interest from October 4, 2000, in the amount of $44.52 per day, postjudgment interest in the same amount, and costs and attorney fees (approximately $3,815) to respondent.

On December 10, 2004, appellant filed a motion to set aside the judgment on the grounds of excusable neglect, and filed an ex parte request to preclude sale of the aircraft. Appellant's counsel also filed signed declarations from his secretary indicating, in pertinent part, that on December 9, 2004, she had contacted the law offices of Mr. Damsky (appellant's former counsel) to pick up the file in this matter and was told by him that it was at his storage facility and would be available to her soon.

Respondent opposed the motion to set aside the judgment, asserting that appellant had failed to offer sufficient facts to show abandonment by his former attorney. In support of the opposition, respondent's counsel declared that at the time the aircraft was seized at the Chino airport by the sheriff executing a writ of possession, he overheard appellant's cell phone conversation with his former attorney. The former attorney stated, â€