Moghaddam v. Chakrabarti

Filed 11/30/07 Moghaddam v. Chakrabarti CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from orders of the Superior Court of Los Angeles County, Murray Gross, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Dismissed in part; affirmed in part.

Linda Rose Fessler for Defendant and Appellant.

Law Offices of Robert M. Moss, Inc. and Robert M. Moss for Plaintiff and Respondent.

____________________

INTRODUCTION

Defendant Gautam Chakrabarti appeals from orders of the trial court (1) denying his motion for an order requiring plaintiff Parisa Moghaddam to comply with his demand for full or partial notice of satisfaction of judgment, and (2) granting plaintiffs motion for sanctions under Code of Civil Procedure section 128.7. We dismiss the appeal from the first order and affirm the second order.

FACTUAL AND PROCEDURAL BACKGROUND

On April 12, 2002, plaintiff filed a statement authorizing confession of judgment. In it, defendant confessed judgment in the amount of $125,000 in favor of plaintiff and authorized judgment in that sum to be entered against him. The statement recited the following facts in its support: Beginning on or about May 19, 1997 and continuing until about April 29, 1998, Plaintiff invested $142,000 of Plaintiffs money in a highly leveraged investment in the equity market. Defendant promised extremely profitable returns. [] The investment was not successful, which caused Plaintiff to lose most of her $142,000 investment. [] Defendant has repaid Plaintiff $50,000.

Defendant has agreed to repay Plaintiff the remaining $92,000, plus $31,605 in interest at a rate of 10% per annum computed to June 30, 2000, plus attorneys fees for a total of $125,000. Said $125,000 shall bear interest at a rate of 10% per annum accruing from July 1, 2000. Therefore, Defendant confesses to a judgment in the amount of $125,000 plus interest at a rate of 10% per annum accruing from July 1, 2000.

The statement authorizing confession of judgment was the result of a settlement agreement and mutual release of claims between plaintiff and defendant. This settlement agreement set forth the amounts due to plaintiff from defendant and provided that if defendant failed to make the payments when due, plaintiff would be entitled to enter a judgment of confession.

On April 6, 2006, plaintiff filed an acknowledgement of partial satisfaction of judgment in the amount of $14,534.34.

In response, defendant, represented by Attorney Sanford M. Ehrmann, filed a motion for an order requiring the judgment creditor to comply with a demand for acknowledgement of full or partial satisfaction of judgment. Defendant claimed that he made all the payments necessary to satisfy the judgment, but plaintiff failed to comply with his demand for an acknowledgement of satisfaction of judgment. Defendant supported his motion with a declaration and other documentation as to payments he made to defendant from 1996 to 2005, which were not credited toward his satisfaction of the judgment. In his declaration, he also recited the circumstances leading up to his execution of the statement authorizing confession of judgment. He requested that, [i]n light of the circumstances and conditions under which [he] foolishly, ill-advisedly and under much duress and emotional distress, executed the subject Statement . . . , and in the interests of justice and equity, he should be given proper credit for all payments made by him to Plaintiff . . . , prior and subsequent to his execution of said Confession.

Plaintiff opposed defendants motion on the grounds that the motion was not the proper means by which to set aside the confession of judgment, and that defendant failed to show he was entitled to credit for satisfaction of judgment in an amount greater than that already given to him. In support of the opposition, plaintiff filed documents showing that on July 22, 2004, defendant filed an independent action (Chakrabarti v. Moghaddam (Super. Ct. L.A. County, 2004, No. BC318878)) against her for rescission or reformation, promissory fraud, breach of contract and abuse of process. In the independent action, defendant sought to rescind the settlement agreement and confession of judgment as well as to recover damages. Plaintiff moved for summary judgment in the independent action, in part based on the statute of limitations for rescission of an agreement. Realizing that the cause of action for rescission was barred by the statute of limitations, defendant dismissed the independent action.

On July 18, 2006, the trial court denied defendants motion for an order requiring judgment creditor to comply with demand for acknowledgement of full or partial satisfaction of judgment. It found, based on the evidence submitted, that defendant had made no payments in satisfaction of the judgment other than the $14,534.34 with which he had been credited. Notice of ruling was served by mail on Attorney Ehrmann on July 31, 2006.

The order denying defendants motion was filed on August 24, 2006. In it, the trial court explained that the payments defendant made before the confession of judgment were irrelevant; he could not retroactively seek credit for those payments. As to the payments he allegedly made after the confession of judgment, he had not provided sufficient proof of such payments. Plaintiff served a copy of this order on Attorney Ehrmann by mail on August 28, 2006.

Plaintiff filed a motion for sanctions pursuant to Code of Civil Procedure section 128.7. Plaintiff claimed defendants motion for an order requiring judgment creditor to comply with a demand for acknowledgement of full or partial satisfaction of judgment was frivolous and undertaken for improper purposes, especially in light of defendants failed attempt to rescind the settlement agreement and confession of judgment in the independent action.

On September 26, 2006, the trial court granted the motion for sanctions, ordering defendant and Attorney Ehrmann to pay $6,352 in attorneys fees and costs. The court found that defendants motion was improper as it had no purpose and needlessly increased the cost of the litigation. Plaintiff served notice of ruling on Attorney Ehrmann by mail on October 5, 2006.

Defendant filed his notice of appeal from the July 18, 2006 and September 26, 2006 orders on November 20, 2006. Plaintiff moved to dismiss the appeal as to the former on the ground the notice of appeal was not timely filed.

DISCUSSION

Timeliness of the Notice of Appeal

Rule 8.104(a) of the California Rules of Court provides that a notice of appeal must be filed on or before the earliest of: [] (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, showing the date either was mailed; [] (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or [] (3) 180 days after entry of judgment. The time limits set forth in rule 8.104(a) are jurisdictional. (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 902.)

While defendant purported to appeal from the July 18, 2006 minute order denying his motion, we may liberally construe his appeal to have been taken from the written order denying his motion, filed on August 24, 2006. (Cal. Rules of Court, rule 8.100(a)(2).) That order was served on Attorney Ehrmann on August 28, 2006. Defendants notice of appeal was filed on November 20, 2006, more than 60 days after service of the order, and therefore was untimely. (Id., rule 8.104(a)(2).)

In opposition to plaintiffs motion to dismiss, defendant simply states that he had 180 days to file the within appeal as [he]was not in receipt of a Notice of Entry of Judgment or a file stamped copy of the Judgment. He presents no evidence whatsoever that he was not properly served with a copy of the order denying his motion.

Service of a document is presumed if a party has complied with the statutory requirements for service. (Jones v. Catholic Healthcare West (2007) 147 Cal.App.4th 300, 308.) The party serving the document has no burden of proving actual receipt. (Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360.) Since the record supports a presumption that defendant was served with a copy of the order denying his motion on August 28, 2006, we must dismiss his appeal as to the August 24, 2006 order as untimely. (Id. at p. 361.)

Sanctions

In support of his contention that the trial court abused its discretion in imposing sanctions for filing a frivolous motion, defendant cites no legal authority, but only two statements by the trial court regarding payments defendant might have made in satisfaction of the judgment. In the first of these, the trial court stated that it did not have the papers in front of it from defendants previous motion, but it did not recall any postjudgment payments other than interest that would entitle defendant to satisfaction. In the second, the trial court discussed certain payments.

These statements, defendant asserts, establish [his] contention that the entire consideration of this case did not afford him the necessary due process considerations, in that there was no direct consideration of documentary evidence and . . . the review was based on memory from the prior proceedings. The analysis in this regard by the trier of fact was cursory at best and did not purport to accurately detail the required facts.

At the beginning of the hearing on plaintiffs motion for sanctions, the trial court gave its tentative ruling to grant the motion. It explained the tentative ruling came after reviewing the papers and the motion, and [it did] recall the motion where the judgment debtor made a motion for a full or partial satisfaction of the judgment. The court later reaffirmed that it remembered the case, and it discussed details which led it to conclude defendant filed his motion for an improper purpose.

It thus is clear the trial court considered the relevant evidence before granting plaintiffs motion for sanctions. Defendant therefore has not demonstrated any abuse of discretion. (Ohton v. Board of Trustees of California State University (2007) 148 Cal.App.4th 749, 766 [discretion is abused if a decision is arbitrary, capricious, lacking evidentiary support or contrary to law]; Sabek, Inc. v. Engelhard Corp. (1998) 65 Cal.App.4th 992, 1001.)

The appeal is dismissed as to the August 24, 2006 order. The September 26, 2006 order is affirmed. Plaintiff is to recover costs on appeal.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

VOGEL, Acting P. J.

ROTHSCHILD, J.

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* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.