Ramin Delavari v. Hanson Nguyen et al

Filing 36

MINUTE ORDER IN CHAMBERS re Ex Parte Application to Set Aside Default Judgment and Related Relief 30 by Judge Christina A. Snyder: Court GRANTS defendants' ex parte application to set aside the default judgment and default. Plaintiff is enjoined from any attempt to enforce the default judgment. (Please see order for details) (kpa)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 08-4422 CAS (CTx)

Title

RAMIN DELAVARI v. HANSON NGUYEN, ET AL.

Present: The Honorable

Date

October 24, 2011

CHRISTINA A. SNYDER, U.S. DISTRICT JUDGE

RITA SANCHEZ
Deputy Clerk

N/A
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

N/A

N/A

Proceedings:

I.

(In Chambers:) Ex Parte Application to Set Aside Default
Judgment and Related Relief (filed 08/15/2011)

INTRODUCTION AND BACKGROUND

The Court finds this motion appropriate for decision without oral argument. Fed.
R. Civ. P. 78; Local Rule 7-15.
On July 3, 2008, plaintiff Ramin Delavari (“plaintiff”) filed a complaint in this
Court against defendants Hanson Nguyen (“Nguyen”); ValueMD, LLC (“ValueMD”);
and DOES 1 to 10 (collectively, “defendants”). The complaint alleges claims for (1)
defamation/slander per se, (2) permanent injunction and (3) intentional infliction of
emotional distress.
On February 26, 2009 and May 15, 2009, plaintiff filed requests for the clerk to
enter defaults against defendants. The clerk denied both requests and gave plaintiff
notice of deficiencies in plaintiff’s proof of service. On August 29, 2009, plaintiff filed a
third request for the clerk to enter defaults against defendants. On July 1, 2009, the clerk
entered default as to Nguyen. On July 2, 2009, the clerk entered default as to ValueMD.
On October 15, 2009, plaintiff filed a motion for entry of default judgment against
Nguyen and Value MD. On November 16, 2009, a hearing was held on plaintiff’s
motion. Defendants did not appear at the hearing and the Court ordered plaintiff to
submit a supplemental brief. Plaintiff’s supplemental brief was filed on December 8,
2009. On January 5, 2010, the Court granted plaintiff’s motion for entry of default
judgment, awarding plaintiffs $150,000 in damages against defendants, jointly and
severally.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 08-4422 CAS (CTx)

Date

October 24, 2011

Title

RAMIN DELAVARI v. HANSON NGUYEN, ET AL.

On August 15, 2011, defendants filed the instant ex parte application to set aside
the default judgment. On September 7, 2011, plaintiff filed an opposition to the ex parte
application. On September 9, 2011, defendants filed their reply. Defendants’ ex parte
application is presently before the court.
II.

LEGAL STANDARD

Fed. R. Civ. Pro. 60(b) governs the relief of a party from final judgments,
including default judgments. Pursuant to Fed. R. Civ. Pro. 60(b)(4), a court may set aside
a default judgment where the judgment is void. Pursuant to Fed. R. Civ. Pro. 60(b)(6), a
court may also set aside a default judgment for any other reason that justifies relief. A
default judgment is void if the judgment violates a party’s due process; lack of notice
violates due process. Perata v. Heights Medical Ctr., Inc., 485 U.S. 80, 85 (1988).
Pursuant to Fed. R. Civ. Pro. 55(c), a default should be set aside for “good cause.”
Three factors are considered by the Court in determining whether “good cause” is
present: (1) whether defendant’s culpable conduct led to the default; (2) whether
defendant has a meritorious defense; and (3) whether reopening the default judgment
would prejudice plaintiff. TCI Group Life Insurance Plan v. Knoebber, 244 F.3d 691,
696 (9th Cir. 2000) (noting that courts use the same factors to assess “good cause” under
Fed. R. Civ. Pro. 55(c) as for reviewing default judgments under Fed. R. Civ. Pro. 60(b)).
As a general rule, cases should be decided on the merits as opposed to by default,
and therefore “any doubts as to the propriety of a default are usually resolved against the
party seeking a default judgment.” Judge Schwarzer, Judge Tashima & Judge Wagstaffe,
The Rutter Group Guide: Federal Civil Procedure Before Trial, 6:11 (2009) (citing Pena
v. Seguros La Comercial, S.A. 770 F.2d 811, 814 (9th Cir. 1985)). As such, the Court
has broad discretion to overturn an entry of default. Mendoza v. Wight Vineyard
Management, 783 F.2d 941, 945-46 (9th Cir. 1986). Nonetheless, it is the defaulting
party’s burden to demonstrate that a default judgment should be vacated. TCI Group Life
Ins. Plan, 244 F.3d at 696.
III.

DISCUSSION

In their ex parte application, defendants contend that plaintiff failed to provide
notice to defendants Nguyen and ValueMD. App. at 10. This contention is supported by
the declarations of Dong Nguyen (“Dong”), Nguyen’s brother; Thu Pham (“Pham”),
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 08-4422 CAS (CTx)

Date

October 24, 2011

Title

RAMIN DELAVARI v. HANSON NGUYEN, ET AL.

Dong’s wife; Peter J. Ghaleb (“Ghaleb”), President and COO of ValueMD; and Hansen
Nguyen.
Defendants argue that plaintiff’s proof of service on Nguyen, which states service
was provided to “Mrs. Nguyen” at 1642 Pine Ridge Drive, Davenport, Florida 33896
(“Nguyen residence”), is invalid. Id. at 10–11. Nguyen argues that he is a single man
and no person signing “Mrs. Nguyen” lives at the Nguyen residence. Id. at 11. Nguyen
admits that his sister-in-law, Pham, resides at the Nguyen residence; however, Pham
asserts that she does not use Nguyen’s last name, and that in any event, she never
received service. Id. at 11–12. Further, defendants argue plaintiff’s proof of service on
Value MD, which shows service to “Mrs. Nguyen, person in charge for Valuemed, LLC,”
is invalid for the same reasons. Id. at 11.
In opposition, plaintiff’s attorney provides a declaration asserting that proper
notice was given to both defendants using substituted service. Nehoray Decl. ¶ 9.
The Court finds defendants were never properly served. Therefore, the default
judgment is void as infringing on defendants’ right to due process. See Perata at 85.
Further, the Court finds good cause to set aside the entry of default against defendants so
that this case may be decided on the merits.
IV.

CONCLUSION

For the foregoing reasons, the Court GRANTS defendants’ ex parte application to
set aside the default judgment and default. Plaintiff is hereby enjoined from any attempt
to enforce the default judgment.
IT IS SO ORDERED
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Initials of
Preparer

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