Eury v. Aboutaleb



Filed 6/13/11 Eury v. Aboutaleb CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.






IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

SALETO T. EURY, Plaintiff and Respondent, v. AHMED ABOUTALEB, Defendant and Appellant.

B223994 (Los Angeles County Super. Ct. No. BC373064)

APPEAL from a judgment of the Superior Court of Los Angeles County, John Kronstadt, Judge. Affirmed.
Ahmed Aboutaleb, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.

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Defendant and appellant Ahmed Aboutaleb appeals from a judgment entered in favor of plaintiff and respondent Saleto T. Eury in this breach of contract action.^[1] Ahmed contends: 1) the judgment against him is void for lack of valid service of process; and 2) the trial court abused its discretion by denying Ahmed's requests for continuances and imposing sanctions. We conclude substantial evidence supports the trial court's finding that Ahmed was properly served with the summons and complaint. Ahmed has failed to provide an adequate record on appeal to permit review of the trial court's discretionary rulings on his requests for continuances and sanctions. Therefore, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On June 21, 2007, Eury filed a complaint against Ahmed, Yasser Aboutaleb, and the estate of Ayman Aboutaleb. Eury later amended the complaint to substitute Ahmed in his capacity as executor in place of the estate. The complaint alleged causes of action for breach of a contract, fraud and negligent misrepresentation, unfair business practices in violation of Business and Professions Code section 17200, quiet title, and cancellation of the deed of trust arising out of the sale of a business in Temple City.
In May 2008, Eury filed a proof of service stating that process server Rochelle Yarmak personally served Ahmed with the summons and complaint on May 1, 2008, at 3:30 p.m., at 43723 20th Street, Suite 207, Lancaster, California 93534. On August 1, 2008, the clerk entered Ahmed's default. The trial court dismissed the complaint as against Ahmed in his capacity as executor and Yasser for failure to obtain entry of default.
On September 2, 2008, Ahmed filed a motion in pro. per. to set aside the default and quash the service of summons on the ground that he had not been personally served as stated in the proof of service. He attached supporting documentation. At a hearing on February 25, 2009, the trial court granted Ahmed's motion to set aside the default. The court also granted a motion by Eury's attorney to be relieved as counsel of record.
On April 27, 2009, Ahmed filed a motion to quash service of summons. He submitted a declaration in support of the motion stating that: 1) he had not been personally served; 2) he did not occupy the business address listed on the proof of service on the date that the process server claimed to have personally served him there; and 3) between 3:18 p.m. and 3:35 p.m. on May 1, 2008, he was at McMahon's Furniture. The hearing date set for the motion was June 17, 2009.
On June 11, 2009, Ahmed filed a request for a continuance to March 2010 based on a knee injury, which required surgery. He stated that the medication for the injury affected his ability to participate in the court proceedings and he would not be able to walk for eight months after the surgery. He attached a medical report of an MRI examination of his left knee, dated April 8, 2009.
No party appeared for the hearing on June 17, 2009. The minute order reflects the trial court's findings that no opposition to the motion was filed, but â€