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Marc D. Bender (SBN 156923) FILED
LAW OFFICE OF MARC D. BENDER By Superior Court of California, County of San Mateo
177 Bovet Rd., Suite 600 ON 7/18/2023
San Mateo, California 94402 !si_ Tovar, Priscilla
(650) 638-2347 By
marc(@benderlaw.net
Deputy Clerk
Attorney for Defendants INDRAWOUS AZAR and RONNY AZAR
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
UNLIMITED JURISDICTION
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NAIFEH AZAR Case No.: 22 CIV 02094
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12 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
13 vs.
TO SET ASIDE DEFAULT AND FOR
AWARD OF SANCTIONS
14 OMAR AZAR; FADWA AZAR; RONNY
AZAR; SHUKRY AZAR; INDRAWOUS Date: September 8, 2023
15
AZAR; NADIA AZAR; GOPAL C. Time: 9:00 a.m.
16 PATELL,; and DOES 1-50, Inclusive, Dept.: 21
Hon. Robert Foiles
17 Defendants.
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[Related Case: 18 CIV 01833]
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This case involves an inter-family dispute regarding ownership of a house in San Bruno
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where Defendants INDRAWOUS and NADIA AZAR have lived and made all payments for the
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past 40+ years.
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Plaintiff NAIFEH AZAR is the sister in-law of INDRAWOUS. Defendants OMAR,
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24 FADWA, RONNY and SHUKRY AZAR are the adult children of INDRAWOUS and NADIA.
25 In September, 2019, a bench trial between the parties took place before Hon. Richard
26 DuBois in Case No. 18 CIV 01833. In that case, INDRAWOUS and NADIA claimed
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ownership of the property under a Resulting Trust. Judge DuBois ruled in favor of
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INDRAWOUS and NADIA, and awarded them title to the property. y
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DEFAULT AND FOR
AWARD OF SANCTIONS
NAIFEH filed an Appeal of that decision, and the case was remanded to Hon. Raymond
Swope. In August, 2022, Judge Swope rendered a Final Statement of Decision and Judgment in
which he confirmed title to INDRAWOUS and NADIA under a Resulting Trust. (See Exhibit
“1” to Request for Judicial Notice — page 14).
In the underlying action, INDRAWOUS has filed a Demurrer which is set for hearing on
September 8, 2023. The basis for the Demurrer is that NAIFEH’s claims in this case. are
precluded by res judicata since they have already been litigated.
INDRAWOUS has also filed a Motion to Determine Plaintiff (NAIFEH) as a Vexatious
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Litigant, which is set before Hon. Elizabeth Lee on July 31, 2023.
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Essentially, NAIFEH is seeking to drain INDRAWOUS’ family financially by filing he
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within action, which involves the same claims that she already lost in the prior case. NAIFEH
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is pursuing this frivolous action after two San Mateo Superior Court judges have found that
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15 INDRAWOUS and NADIA are the true owners of the property (not NAIFEH or her husband).
16 NAIFEH has recently added Judge Swope as a Doe Defendant in this case.
17 On June 30, 2023, over six months after the Demurrer and Vexatious Litigant Motion
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were filed, NAIFEH requested entry of default against RONNY, FADWA and SHUKRY
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AZAR.
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Default was entered against RONNY on June 30, 2023. (See Exhibit “A”). The Clerk
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denied entry of default as to FADWA and SHUKRY based on a “questionable proof of
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23 service”. NAIFEH thereafter filed Amended Proofs of Service regarding FADWA and
24 SHUKRY.
25 When she sought default, NAIFEH was clearly aware that INDRAWOUS’ family is
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represented by the undersigned and that there are pending motions to challenge her Complaint
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based on res judicata and to declare her as a vexatious litigant under Civil Code §391.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DEFAULT AND FOR
AWARD OF SANCTIONS
NAIFEH is abusing the legal process by re-litigating the same case and forcing the
AZAR children to incur attorney’s fees and costs to appear and set aside default while the action
is already being challenged under res judicata.
The within motion is seeking to set aside default entered against RONNY AZAR, as
well as any other default requests that NAIFEH may make prior to the hearing on this motion.
The court should hear the Demurrer and Motion to Set Aside Default concurrently on
September 8, 2023, when a Motion to Quash filed by Defendant LENIGER is also on calendar.
DEFAULT SHOULD BE SET ASIDE UNDER CCP §473
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Under CCP §473(b), default may be set aside based on mistake, inadvertence, surprise
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or excusable neglect, as long as the request for relief is filed within six months after the default
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was taken.
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This motion is being filed less than a month after default was entered on June 30, 2023.
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15 Relief from default is mandatory when the defaulting attorney files a declaration
16 acknowledging his or her mistake, inadvertence, surprise of neglect. CCP §473(b) indicates, in
17 pertinent part:
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Notwithstanding any other requirements of this section, the court shall,
19 whenever an application for relief is made no more than six month after
entry of judgment, is in proper form, and is accompanied by an attorney’s
20 sworn affidavit attesting to his or her mistake, inadvertence, surprise or
neglect, vacate any (1) resulting default entered by the clerk against his or
21 her client, and which will result in entry of default judgment, or (2) resulting
default judgment or dismissal entered against his or her client, unless the
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court finds that the default or dismissal was not in fact caused by the
23 attorney’s mistake, inadvertence, surprise or neglect.
24 An attorney affidavit of fault does not need to include an explanation of the reasons for
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the attorney’s mistake, inadvertence, surprise or neglect. Martin Potts & Associates v, Corsair,
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LLC, (2016) 244 Cal.App.4" 432, 443.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DEFAULT AND FOR
AWARD OF SANCTIONS
The undersigned represents INDRAWOUS and NADIA AZAR, and all of their adult
children. The Demurrer and Vexatious Litigant Motion were filed on behalf of INDRAWOUS
only, in order to save the $435 first appearance filing fee for NADIA and each of the four
AZAR children. (See Declaration of Mare D. Bender).
This inadvertence was a justifiable excuse for not filing appearances for RONNY AZAR
and the other defendants, and constitutes automatic grounds to set aside default under CCP
§473(b).
Therefore, the default entered against RONNY AZAR, and any other defendants
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defaulted prior to the hearing on this motion, should be set aside.
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A proposed Joinder in the pending Demurrer on behalf of RONNY AZAR is filed
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herewith.
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NAIFEH SHOULD BE ORDERED TO PAY SANCTIONS UNDER CCP §128.5
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15 NAIFEH was fully cognizant of the pending demurrer and vexatious litigant motion
16 when she pursued default against RONNY and the other AZAR children. It is apparent that this
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was done for the sole purpose of forcing them to incur additional fees and costs without any
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substantive basis for recovering a default judgment or other relief against the defendants.
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No prior notice was ever given to the undersigned before NAIFEH sought default on
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June 30, 2023. (See Declaration of Marc D. Bender).
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22 Under CCP §128.5:
23 (a) A trial court may order a party, the party’s attorney, or both, to pay the
reasonable expenses, including attorney’s fees, incurred by another party as
24 a result of actions or tactics, made in bad faith, that are frivolous or solely
intended to cause unnecessary delay. This section also applies to judicial
25
arbitration proceedings under Chapter 2.5 (commencing with Section
26 1141.10) of Title 3 of Part 3.
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DEFAULT AND FOR
AWARD OF SANCTIONS
1 (b) For purposes of this section:
(1) “Actions or tactics” include, but are not limited to, the making or
opposing of motions or the filing and service of a complaint, cross-
complaint, answer, or other responsive pleading. The mere filing of a
complaint without service thereof on an opposing party does not constitute
“actions or tactics” for purposes of this section.
(2) “Frivolous” means totally and completely without merit or for the sole
purpose of harassing an opposing party.
(©) Expenses pursuant to this section shall not be imposed except on notice
contained in a party’s moving or responding papers or, on the court’s own
motion, after notice and opportunity to be heard. An order imposing
expenses shall be in writing and shall recite in detail the action or tactic or
circumstances justifying the order.
10
lI In a motion for sanctions under CCP $128.5, the moving party has the burden of proving
12 that the opposing party’s motion or tactic was (1) totally and completely without merit,
13 measured by the objective, reasonable-attorney standard, or (2) motivated solely by an intention
14
to harass or cause unnecessary delay, measured by a subjective standard. Bach v. McNelis
15
(1989) 207 Cal. App. 3d 852, 876.
16
NAIFEH’s request for default is entirely meritless. She clearly filed it so that RONNY
17
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and the other AZAR defendants would have to pay fees and costs before the vexatious litigant
19 motion is heard on July 31, 2023. There is no justification for her actions, and they should be
20 sanctionable under these circumstances.
21 The undersigned charges $375 per hour. 4.2 hours were devoted to this motion, plus 3
22
additional hours for anticipated time to review opposition, prepare a reply and attend the hearing
23
on the motion. (See Declaration of Marc D. Bender).
24
A first appearance fee of $435 was paid for RONNY AZAR, as well as $60 for the
25
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motion fee.
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5
ee
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DEFAULT AND FOR
AWARD OF SANCTIONS
1 The total fees and costs incurred to file this motion are therefore $3,195. NAIFEH
2
should be ordered to pay additional punitive sanctions of $10,000 for pursuing this case at all in
light of her history of losing the identical underlying claims.
Defendants are therefore seeking sanctions in the amount of $13,195.00.
paren: 7 : 23 LAW OFFICE OF MARC D. BENDER
10 Ly———
MARCD. BENDER
ll Attorneys for Defendants INDRAWOUS AZAR
and RONNY AZAR
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DEFAULT AND FOR
AWARD OF SANCTIONS
EXHIBIT “A”
oC
By tay mo
ATTORNEY OR PARTY WITHOUT ATTORNEY.
STATE BAR NO: CiV-100
INAME: Naifeh Azar FOR COURT USE ONLY
FIRM NAME:
STREET ADDRESS: 2656 Shannon Dr.
crry: South San Francisco
TELEPHONE NO.: (650)291-0512 STATE: CA iP CODE: 94080
FAX NO.:
E-MAIL ADDRESS; MyAzatFamily@gm
ail.com Electronically
ATTORNEY FOR (name) Plaintiff pro se
oe Copspag s jgounty ‘at San Matec
SUPERIOR COURT OF CALIFORNIA, COUNTY
STREET ADRE
OF SAN MATEO
SS: 400 County Center
MAILING ADDRESS. by__is/ Kimberly Claussen __
CITY AND ZIP Cove: ~— Redwood City CA 94080
BRANCH NAME:
Plaintiff/Petitioner: NAIFEH AZAR
Defendant/Respondent: OMAR AZAR, et. al.
REQUEST FOR (2c Entry of Default [] Clerk's Judgment CASE NUMBER:
(Application) [J Court Judgment 22C1V02094
Not for use in actions under the Fair Debt Buying
Practices Act (Civ. Code, § 1788.50 et seq.); (see form CIV-105)
1. TO THE CLERK: On the
a.
1a
On (date):02/24/2022* zoe
BaP pg eomlaint filed
b. by (name): NAIFEH AZAR
c. [3] Enter default of defendant (names):
Rogny Azar
d. [7] | request a court judgment under Code of Civil P rocedure sections 585(b),
585(c), 989, etc., against defendant
(names):
(Testimony required. Apply to the clerk for a hearing date, unless the court will enter
a judgment on an affidavit under
Code Civ. Proc., § 585(d):)
e. [7] Enter clerk's judgment
(1) [[—] for restitution of the premises only and issue a writ of execution on the judgment. Code of Civil Procedure
section
1174(c) does not apply. (Code Civ. Proc., § 1169.)
[7] Include in the judgment all tenants, subtenants, named claimants, and other occupants of the premises. The
Prejudgment Claim of Right to Possession was served in com pliance with Code of Civil Procedure section
415.46,
(2) [J under Code of Civil Procedure section 585(a). (Complete the declaration under Code Civ. Proc., § 585.5 on the
reverse (item 5).)
(3)
[£1] for default previously entered on (date):
2, Judgment to be entered. Amount
a Demand of complaint
Credits acknowledged Balance
b. Statement of damages”
(1) Special
(2) General
interest .....
Costs (see reverse)
Attorney fees: . .
TOTALS
. Dally damages were demanded in complaint at the rate of: $ per day beginning (date):
(“Personal injury or wrongful death actions; Code Civ. Proc., § 425.11.) .
(7) (Check if filed in an unlawful detainer case.) Legal document assistant or unlawful detainer assistant information is on the
reverse (complete item 4).
Date: 06/30/2023
Naifeh Azar
(TYPE OR PRINT NAME)
FOR COURT (1) [£2] Default eptered.as requested on (date): OLSU/ZU23
USE ONLY (2) Default NOT entered as requested (state reason):
eal |. Taniguchi Clerk, by /s/ Kimberly Claussen , Deputy Page
1 of §
Form Adopted for Mandatory Use ‘Code of Civil Procedure, §§ 585-587, 1169
Judiclal Council of Catifornia REQUEST FOR ENTRY OF DEFAULT woe courts.ca.gov
‘iV-100 [Rev. Jandary 1, 2023] (Application to Enter Default)
é a
(
Plaintiff/Petitioner. NAIFEH AZAR Clv-100
‘CASE NUMBER:
Defendant/Respondent: OMAR AZAR, et.
al. 22C1V02094
4 Legal document assistant or unlaw
ful detainer a: sistant (Bus. & Prof,
unlawful detainer assistant [—] did C1 Code, § 6400 et seq.). A legal document assist
did nor tt for compensation gi ive advice or assistance ant or
received any help or advice for pay from with this form. If declarant has
a legal do cument assistant or unlawful detain
er assistant, state:
a. Assistant's name:
¢. Telephone no.:
b, Street address, city, and zip code:
d. County of registration:
e. Registration no.:
f. Expires on (date):
5. [7] Declaration under Code Civ. Proc., § 585.5 (for entry
of default under Code Civ. Proc., § 585(a)). This action
a [lis (5X1 is not ona contract or installment sale for goods
or services subject to Civ. Code, § 1801 et seq. (Unruh Act).
b. [Tis [52] isnot ona conditional sales contrac
t subj ject to Civ. Code, § 2981 et seq. (Rees-Levering Motor Vehicle Sales
and Finance Act),
« Cos oy is not_on an obligation for goods, services, loans, or extensi
ons of credit subject to Code Civ. Proc., § 395(b).
Declaration of mailing (Code Civ. Proc., § 587). A
copy of this Request for Entry of Default was
a. [7] not mailed to the following defendants, whose
addresses are unknown to plaintiff or plaintiffs attorney (names)
:
b. [27] mailed first-class, postage prepaid, in a sealed envelope addressed
to each defendant's attorney of record or, if none,
to each defendant's last known address as follo ws:
(1) Walled on (date): 06/30/23 at 7:00AM (2) To (specify names and addresses shown on the envelopes):
Ronny Azar: 100 Stanislaus Ct, San Bruno CA 94066
| declare under penalty of perjury under the laws of the State of California that the
foregoing items 4, 5, and 6 are true and correct,
Date: 06/30/2023
Naifeh Azar
(TYPE OR PRINT NAME}
> Nadi, tear
(A@NATURE OF DECLARANT)
Memorandum of costs (required if money judgment requested). Costs and disbursem
ents are as follows (Code Civ. Proo.,
§ 1033.5):
Clerk's filing fees
Process server's fees
Other (specify):
TOTAL heen en eene
E*eosts and disbursements are waived.
1am the attorney, agent, or party who claims these costs. To the best of my knowledge and belief
this memorandum of costs is
correct and these costs were necessarily incurred in this case.
| declare under penajty of perjury under the laws of the State of California that the foregoing item 7 is
true and correct.
Date: 6/323
t
Alas: QL Bee
(TYPE OR PRINT NAME}
> Weklely Rear
WGicnature br Declarant)
CIV-100 (Rev. January 1, 2023) REQUEST FOR ENTRY OF DEFAULT Page LOTS
(Application to Enter Default)
6
PlaintiffiPetitioner: NAIFEH AZAR Civ-100
CASE NUMBER.
Defendant/Respondent: OMAR AZAR, et.
al. 22CIV02094
8. Declaration of nonmilitai ty status (required
for a judgment).
No defendant/respondent named in item 1c is in
the military service of the Unite: d States as
Civil Relief Act (see’50 U.S.C. § 391 1(2)) or Cali fornia defined by either the Servicemembers
Military and Veterans Code sections 400
and 402(f).
| know that no defendant/respandent named
in item 1 cis in the U.S. military service becaus
a. ([_] the search results that | received from Attos: e (check al that apply):
/scra.dmdc.osd.mil/ say the defendantrespondent
service, is notin the U.S. military
b. (5€] | am in regutar communication with the d
lefendant/respondent and know that they are not in
©. [] I recently contacted the defendant/respot indent, the U.S. military service,
and they told me that they are not in the U.S. militar
d. | CJ ' know that the defendant/respondent y service.
was di ischarged from U.S. military service on or about (date):
e . [7] the defendantrespondent isn ‘ot eligible to serve
in the U.S. military because they are:
(J incarcerated [—] a bu: isiness entity
f. [7] other (specify):
ite
+ U.S. military status can be checked online at ft
+
Attps:/scra.dmdc.osd.
mil.
Ifthe defendant/respondent is in the militar ry service, or their military
status is unknown, the defendant/respondent
is entitled to certain rights and protections under federal and
state law before a default judgment can be entered.
+ For more information, see hitos/selfhelp.
| declare under penalty of perjury under the laws of the State of California that the foregoing item
8 is true and correct.
Date: 06/30/2023
jaifeh Azar
(TYPE OR PRINT NAME) > Waidlel, hea
{SIGNATURE OF DECLARANT)
CIV-100 (Rev. January
1, 2023] Page rors
REQUEST FOR ENTRY OF DEFAULT
(Application to Enter Default)
Preview
Electronically Marc D. Bender (SBN 156923) FILED LAW OFFICE OF MARC D. BENDER By Superior Court of California, County of San Mateo 177 Bovet Rd., Suite 600 ON 7/18/2023 San Mateo, California 94402 !si_ Tovar, Priscilla (650) 638-2347 By marc(@benderlaw.net Deputy Clerk Attorney for Defendants INDRAWOUS AZAR and RONNY AZAR SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO UNLIMITED JURISDICTION 10 NAIFEH AZAR Case No.: 22 CIV 02094 11 12 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 13 vs. TO SET ASIDE DEFAULT AND FOR AWARD OF SANCTIONS 14 OMAR AZAR; FADWA AZAR; RONNY AZAR; SHUKRY AZAR; INDRAWOUS Date: September 8, 2023 15 AZAR; NADIA AZAR; GOPAL C. Time: 9:00 a.m. 16 PATELL,; and DOES 1-50, Inclusive, Dept.: 21 Hon. Robert Foiles 17 Defendants. 18 [Related Case: 18 CIV 01833] 19 This case involves an inter-family dispute regarding ownership of a house in San Bruno 20 where Defendants INDRAWOUS and NADIA AZAR have lived and made all payments for the 21 past 40+ years. 22 Plaintiff NAIFEH AZAR is the sister in-law of INDRAWOUS. Defendants OMAR, 23 24 FADWA, RONNY and SHUKRY AZAR are the adult children of INDRAWOUS and NADIA. 25 In September, 2019, a bench trial between the parties took place before Hon. Richard 26 DuBois in Case No. 18 CIV 01833. In that case, INDRAWOUS and NADIA claimed 27 ownership of the property under a Resulting Trust. Judge DuBois ruled in favor of 28 INDRAWOUS and NADIA, and awarded them title to the property. y MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DEFAULT AND FOR AWARD OF SANCTIONS NAIFEH filed an Appeal of that decision, and the case was remanded to Hon. Raymond Swope. In August, 2022, Judge Swope rendered a Final Statement of Decision and Judgment in which he confirmed title to INDRAWOUS and NADIA under a Resulting Trust. (See Exhibit “1” to Request for Judicial Notice — page 14). In the underlying action, INDRAWOUS has filed a Demurrer which is set for hearing on September 8, 2023. The basis for the Demurrer is that NAIFEH’s claims in this case. are precluded by res judicata since they have already been litigated. INDRAWOUS has also filed a Motion to Determine Plaintiff (NAIFEH) as a Vexatious 10 Litigant, which is set before Hon. Elizabeth Lee on July 31, 2023. 11 Essentially, NAIFEH is seeking to drain INDRAWOUS’ family financially by filing he 12 within action, which involves the same claims that she already lost in the prior case. NAIFEH 13 is pursuing this frivolous action after two San Mateo Superior Court judges have found that 14 15 INDRAWOUS and NADIA are the true owners of the property (not NAIFEH or her husband). 16 NAIFEH has recently added Judge Swope as a Doe Defendant in this case. 17 On June 30, 2023, over six months after the Demurrer and Vexatious Litigant Motion 18 were filed, NAIFEH requested entry of default against RONNY, FADWA and SHUKRY 19 AZAR. 20 Default was entered against RONNY on June 30, 2023. (See Exhibit “A”). The Clerk 21 denied entry of default as to FADWA and SHUKRY based on a “questionable proof of 22 23 service”. NAIFEH thereafter filed Amended Proofs of Service regarding FADWA and 24 SHUKRY. 25 When she sought default, NAIFEH was clearly aware that INDRAWOUS’ family is 26 represented by the undersigned and that there are pending motions to challenge her Complaint 27 based on res judicata and to declare her as a vexatious litigant under Civil Code §391. 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DEFAULT AND FOR AWARD OF SANCTIONS NAIFEH is abusing the legal process by re-litigating the same case and forcing the AZAR children to incur attorney’s fees and costs to appear and set aside default while the action is already being challenged under res judicata. The within motion is seeking to set aside default entered against RONNY AZAR, as well as any other default requests that NAIFEH may make prior to the hearing on this motion. The court should hear the Demurrer and Motion to Set Aside Default concurrently on September 8, 2023, when a Motion to Quash filed by Defendant LENIGER is also on calendar. DEFAULT SHOULD BE SET ASIDE UNDER CCP §473 10 Under CCP §473(b), default may be set aside based on mistake, inadvertence, surprise ll or excusable neglect, as long as the request for relief is filed within six months after the default 12 was taken. 13 This motion is being filed less than a month after default was entered on June 30, 2023. 14 15 Relief from default is mandatory when the defaulting attorney files a declaration 16 acknowledging his or her mistake, inadvertence, surprise of neglect. CCP §473(b) indicates, in 17 pertinent part: 18 Notwithstanding any other requirements of this section, the court shall, 19 whenever an application for relief is made no more than six month after entry of judgment, is in proper form, and is accompanied by an attorney’s 20 sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, vacate any (1) resulting default entered by the clerk against his or 21 her client, and which will result in entry of default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the 22 court finds that the default or dismissal was not in fact caused by the 23 attorney’s mistake, inadvertence, surprise or neglect. 24 An attorney affidavit of fault does not need to include an explanation of the reasons for 25 the attorney’s mistake, inadvertence, surprise or neglect. Martin Potts & Associates v, Corsair, 26 LLC, (2016) 244 Cal.App.4" 432, 443. 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DEFAULT AND FOR AWARD OF SANCTIONS The undersigned represents INDRAWOUS and NADIA AZAR, and all of their adult children. The Demurrer and Vexatious Litigant Motion were filed on behalf of INDRAWOUS only, in order to save the $435 first appearance filing fee for NADIA and each of the four AZAR children. (See Declaration of Mare D. Bender). This inadvertence was a justifiable excuse for not filing appearances for RONNY AZAR and the other defendants, and constitutes automatic grounds to set aside default under CCP §473(b). Therefore, the default entered against RONNY AZAR, and any other defendants 10 defaulted prior to the hearing on this motion, should be set aside. 11 A proposed Joinder in the pending Demurrer on behalf of RONNY AZAR is filed 12 herewith. 13 NAIFEH SHOULD BE ORDERED TO PAY SANCTIONS UNDER CCP §128.5 14 15 NAIFEH was fully cognizant of the pending demurrer and vexatious litigant motion 16 when she pursued default against RONNY and the other AZAR children. It is apparent that this 17 was done for the sole purpose of forcing them to incur additional fees and costs without any 18 substantive basis for recovering a default judgment or other relief against the defendants. 19 No prior notice was ever given to the undersigned before NAIFEH sought default on 20 June 30, 2023. (See Declaration of Marc D. Bender). 21 22 Under CCP §128.5: 23 (a) A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as 24 a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial 25 arbitration proceedings under Chapter 2.5 (commencing with Section 26 1141.10) of Title 3 of Part 3. 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DEFAULT AND FOR AWARD OF SANCTIONS 1 (b) For purposes of this section: (1) “Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross- complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute “actions or tactics” for purposes of this section. (2) “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party. (©) Expenses pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers or, on the court’s own motion, after notice and opportunity to be heard. An order imposing expenses shall be in writing and shall recite in detail the action or tactic or circumstances justifying the order. 10 lI In a motion for sanctions under CCP $128.5, the moving party has the burden of proving 12 that the opposing party’s motion or tactic was (1) totally and completely without merit, 13 measured by the objective, reasonable-attorney standard, or (2) motivated solely by an intention 14 to harass or cause unnecessary delay, measured by a subjective standard. Bach v. McNelis 15 (1989) 207 Cal. App. 3d 852, 876. 16 NAIFEH’s request for default is entirely meritless. She clearly filed it so that RONNY 17 18 and the other AZAR defendants would have to pay fees and costs before the vexatious litigant 19 motion is heard on July 31, 2023. There is no justification for her actions, and they should be 20 sanctionable under these circumstances. 21 The undersigned charges $375 per hour. 4.2 hours were devoted to this motion, plus 3 22 additional hours for anticipated time to review opposition, prepare a reply and attend the hearing 23 on the motion. (See Declaration of Marc D. Bender). 24 A first appearance fee of $435 was paid for RONNY AZAR, as well as $60 for the 25 26 motion fee. 27 28 5 ee MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DEFAULT AND FOR AWARD OF SANCTIONS 1 The total fees and costs incurred to file this motion are therefore $3,195. NAIFEH 2 should be ordered to pay additional punitive sanctions of $10,000 for pursuing this case at all in light of her history of losing the identical underlying claims. Defendants are therefore seeking sanctions in the amount of $13,195.00. paren: 7 : 23 LAW OFFICE OF MARC D. BENDER 10 Ly——— MARCD. BENDER ll Attorneys for Defendants INDRAWOUS AZAR and RONNY AZAR 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DEFAULT AND FOR AWARD OF SANCTIONS EXHIBIT “A” oC By tay mo ATTORNEY OR PARTY WITHOUT ATTORNEY. STATE BAR NO: CiV-100 INAME: Naifeh Azar FOR COURT USE ONLY FIRM NAME: STREET ADDRESS: 2656 Shannon Dr. crry: South San Francisco TELEPHONE NO.: (650)291-0512 STATE: CA iP CODE: 94080 FAX NO.: E-MAIL ADDRESS; MyAzatFamily@gm ail.com Electronically ATTORNEY FOR (name) Plaintiff pro se oe Copspag s jgounty ‘at San Matec SUPERIOR COURT OF CALIFORNIA, COUNTY STREET ADRE OF SAN MATEO SS: 400 County Center MAILING ADDRESS. by__is/ Kimberly Claussen __ CITY AND ZIP Cove: ~— Redwood City CA 94080 BRANCH NAME: Plaintiff/Petitioner: NAIFEH AZAR Defendant/Respondent: OMAR AZAR, et. al. REQUEST FOR (2c Entry of Default [] Clerk's Judgment CASE NUMBER: (Application) [J Court Judgment 22C1V02094 Not for use in actions under the Fair Debt Buying Practices Act (Civ. Code, § 1788.50 et seq.); (see form CIV-105) 1. TO THE CLERK: On the a. 1a On (date):02/24/2022* zoe BaP pg eomlaint filed b. by (name): NAIFEH AZAR c. [3] Enter default of defendant (names): Rogny Azar d. [7] | request a court judgment under Code of Civil P rocedure sections 585(b), 585(c), 989, etc., against defendant (names): (Testimony required. Apply to the clerk for a hearing date, unless the court will enter a judgment on an affidavit under Code Civ. Proc., § 585(d):) e. [7] Enter clerk's judgment (1) [[—] for restitution of the premises only and issue a writ of execution on the judgment. Code of Civil Procedure section 1174(c) does not apply. (Code Civ. Proc., § 1169.) [7] Include in the judgment all tenants, subtenants, named claimants, and other occupants of the premises. The Prejudgment Claim of Right to Possession was served in com pliance with Code of Civil Procedure section 415.46, (2) [J under Code of Civil Procedure section 585(a). (Complete the declaration under Code Civ. Proc., § 585.5 on the reverse (item 5).) (3) [£1] for default previously entered on (date): 2, Judgment to be entered. Amount a Demand of complaint Credits acknowledged Balance b. Statement of damages” (1) Special (2) General interest ..... Costs (see reverse) Attorney fees: . . TOTALS . Dally damages were demanded in complaint at the rate of: $ per day beginning (date): (“Personal injury or wrongful death actions; Code Civ. Proc., § 425.11.) . (7) (Check if filed in an unlawful detainer case.) Legal document assistant or unlawful detainer assistant information is on the reverse (complete item 4). Date: 06/30/2023 Naifeh Azar (TYPE OR PRINT NAME) FOR COURT (1) [£2] Default eptered.as requested on (date): OLSU/ZU23 USE ONLY (2) Default NOT entered as requested (state reason): eal |. Taniguchi Clerk, by /s/ Kimberly Claussen , Deputy Page 1 of § Form Adopted for Mandatory Use ‘Code of Civil Procedure, §§ 585-587, 1169 Judiclal Council of Catifornia REQUEST FOR ENTRY OF DEFAULT woe courts.ca.gov ‘iV-100 [Rev. Jandary 1, 2023] (Application to Enter Default) é a ( Plaintiff/Petitioner. NAIFEH AZAR Clv-100 ‘CASE NUMBER: Defendant/Respondent: OMAR AZAR, et. al. 22C1V02094 4 Legal document assistant or unlaw ful detainer a: sistant (Bus. & Prof, unlawful detainer assistant [—] did C1 Code, § 6400 et seq.). A legal document assist did nor tt for compensation gi ive advice or assistance ant or received any help or advice for pay from with this form. If declarant has a legal do cument assistant or unlawful detain er assistant, state: a. Assistant's name: ¢. Telephone no.: b, Street address, city, and zip code: d. County of registration: e. Registration no.: f. Expires on (date): 5. [7] Declaration under Code Civ. Proc., § 585.5 (for entry of default under Code Civ. Proc., § 585(a)). This action a [lis (5X1 is not ona contract or installment sale for goods or services subject to Civ. Code, § 1801 et seq. (Unruh Act). b. [Tis [52] isnot ona conditional sales contrac t subj ject to Civ. Code, § 2981 et seq. (Rees-Levering Motor Vehicle Sales and Finance Act), « Cos oy is not_on an obligation for goods, services, loans, or extensi ons of credit subject to Code Civ. Proc., § 395(b). Declaration of mailing (Code Civ. Proc., § 587). A copy of this Request for Entry of Default was a. [7] not mailed to the following defendants, whose addresses are unknown to plaintiff or plaintiffs attorney (names) : b. [27] mailed first-class, postage prepaid, in a sealed envelope addressed to each defendant's attorney of record or, if none, to each defendant's last known address as follo ws: (1) Walled on (date): 06/30/23 at 7:00AM (2) To (specify names and addresses shown on the envelopes): Ronny Azar: 100 Stanislaus Ct, San Bruno CA 94066 | declare under penalty of perjury under the laws of the State of California that the foregoing items 4, 5, and 6 are true and correct, Date: 06/30/2023 Naifeh Azar (TYPE OR PRINT NAME} > Nadi, tear (A@NATURE OF DECLARANT) Memorandum of costs (required if money judgment requested). Costs and disbursem ents are as follows (Code Civ. Proo., § 1033.5): Clerk's filing fees Process server's fees Other (specify): TOTAL heen en eene E*eosts and disbursements are waived. 1am the attorney, agent, or party who claims these costs. To the best of my knowledge and belief this memorandum of costs is correct and these costs were necessarily incurred in this case. | declare under penajty of perjury under the laws of the State of California that the foregoing item 7 is true and correct. Date: 6/323 t Alas: QL Bee (TYPE OR PRINT NAME} > Weklely Rear WGicnature br Declarant) CIV-100 (Rev. January 1, 2023) REQUEST FOR ENTRY OF DEFAULT Page LOTS (Application to Enter Default) 6 PlaintiffiPetitioner: NAIFEH AZAR Civ-100 CASE NUMBER. Defendant/Respondent: OMAR AZAR, et. al. 22CIV02094 8. Declaration of nonmilitai ty status (required for a judgment). No defendant/respondent named in item 1c is in the military service of the Unite: d States as Civil Relief Act (see’50 U.S.C. § 391 1(2)) or Cali fornia defined by either the Servicemembers Military and Veterans Code sections 400 and 402(f). | know that no defendant/respandent named in item 1 cis in the U.S. military service becaus a. ([_] the search results that | received from Attos: e (check al that apply): /scra.dmdc.osd.mil/ say the defendantrespondent service, is notin the U.S. military b. (5€] | am in regutar communication with the d lefendant/respondent and know that they are not in ©. [] I recently contacted the defendant/respot indent, the U.S. military service, and they told me that they are not in the U.S. militar d. | CJ ' know that the defendant/respondent y service. was di ischarged from U.S. military service on or about (date): e . [7] the defendantrespondent isn ‘ot eligible to serve in the U.S. military because they are: (J incarcerated [—] a bu: isiness entity f. [7] other (specify): ite + U.S. military status can be checked online at ft + Attps:/scra.dmdc.osd. mil. Ifthe defendant/respondent is in the militar ry service, or their military status is unknown, the defendant/respondent is entitled to certain rights and protections under federal and state law before a default judgment can be entered. + For more information, see hitos/selfhelp. | declare under penalty of perjury under the laws of the State of California that the foregoing item 8 is true and correct. Date: 06/30/2023 jaifeh Azar (TYPE OR PRINT NAME) > Waidlel, hea {SIGNATURE OF DECLARANT) CIV-100 (Rev. January 1, 2023] Page rors REQUEST FOR ENTRY OF DEFAULT (Application to Enter Default)