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Filed 7/2/21 Atallinni v. Atallah CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

JEOVANNI ATALLINNI,

Plaintiff, Cross-defendant and 

Appellant,

v.

JIHAD ATALLAH,

Defendant, Cross-complainant and 

Respondent;

ELIAS ATALLAH,

Defendant and Respondent.

E072646

(Super.Ct.No. MCC1500547)

OPINION

APPEAL from the Superior Court of Riverside County. Angel M. Bermudez, 

Judge. Affirmed.

Jeovanni Atallinni, in pro. per., for Plaintiff, Cross-defendant and Appellant.

Best Best & Krieger and Amy E. Hoyt for Defendant, Cross-complainant and 

Respondent Jihad Atallah and for Defendant and Respondent Elias Atallah.
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Jeovanni Atallinni sued his brothers, Jihad and Elias Atallah, to settle a dispute 

over real property in Wildomar, California.1 Jihad filed a cross-complaint against 

Atallinni relating to the same property. The trial court dismissed Atallinni’s first 

amended complaint (FAC) with prejudice and entered a default judgment against 

Atallinni on the cross-complaint. Atallinni argues that the trial court erred by denying his

motion for relief from the default. We affirm.

BACKGROUND

I. Allegations of Atallinni’s FAC

The FAC alleged the following facts: Atallinni wanted to purchase the subject 

property but could not obtain a mortgage loan because of his credit rating. In July 2008, 

Jihad and Atallinni agreed that Jihad would obtain a mortgage loan and take title to the 

property in his name alone, but Atallinni would provide the funds for the down payment 

and make all mortgage, insurance, and tax payments. Atallinni made those payments and 

lived at the property for years. Around October 2015, Jihad listed the subject property 

for sale and accepted an offer that was $90,000 below market value. After learning of 

this lawsuit, Jihad terminated the pending sale and transferred title of the subject property 

to Elias. Jihad served Atallinni with a 30-day notice to vacate the property in 

December 2015. 

The FAC sought to quiet title to the subject property and alleged a number of 

related causes of action.

1 We refer to Jihad and Elias by their first names for the sake of clarity. No 

disrespect is intended.
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II. Allegations of Jihad’s Cross-Complaint

The cross-complaint alleged the following facts: Jihad bought the subject property 

in July 2008. He agreed to rent the property to Atallinni after Atallinni lost his home in a 

foreclosure sale. Atallinni failed to pay the mortgage and homeowners association dues 

as agreed, so Jihad became delinquent on those payments. Jihad made the delinquent 

payments, but he could not afford the mortgage payments on both the subject property 

and his own residence going forward. He tried to sell the subject property but could not 

because Atallinni refused to cooperate. In March 2016, Jihad filed an unlawful detainer 

action to evict Atallinni. Jihad prevailed in the unlawful detainer action, and Atallinni 

was evicted in June 2016. 

Like the FAC, the cross-complaint sought to quiet title to the subject property. 

The cross-complaint also alleged causes of action for breach of contract and declaratory 

relief, and it sought over $130,000 in damages.

III.Atallinni’s Default on the Cross-complaint

Jihad served the cross-complaint on Atallinni on November 22, 2017. On

December 28, 2017, Jihad filed a request for entry of default on the cross-complaint. The 

court clerk entered Atallinni’s default that same day.

In June 2018, Atallinni filed an ex parte application for relief from the default. 

The next day, the court denied the ex parte application without prejudice to Atallinni 

filing a noticed motion. A few days later, Atallinni moved for relief from the default

under Code of Civil Procedure section 473. (Unlabeled statutory citations refer to this 

code.) He asserted that the default was the result of mistake, inadvertence, surprise, or 
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excusable neglect. His counsel’s declaration in support of the motion stated that 

opposing counsel had requested the default without warning that he was doing so. 

Counsel also declared that Atallinni had a “continuing physical disability” that interfered 

with his ability to communicate with counsel and respond to the cross-complaint. 

Counsel acknowledged that Jihad had served him with the cross-complaint in 

November 2017.

The court denied Atallinni’s motion for relief from the default. The court ruled

that Atallinni had not shown he was entitled to relief under section 473, subdivision (b). 

It concluded that counsel’s declaration in support of the motion did not admit any fault 

for failing to respond to the cross-complaint, and Atallinni did not submit a declaration 

showing his own mistake, inadvertence, surprise, or excusable neglect.

IV.The Default Prove-up Hearing 

At the default prove-up hearing, Jihad’s evidence showed that he purchased the 

subject property in 2008 and provided approximately $193,000 of his own funds for the 

down payment. He rented the property to Atallinni, who agreed to pay the mortgage, 

homeowners association dues, property taxes, and homeowners insurance premiums. 

Jihad introduced evidence that Atallinni’s failure to make the various payments resulted 

in damages of $109,500.07. The court entered a default judgment against Atallinni for 

that amount. The judgment also dismissed the FAC and declared that the subject 

property is “the sole property of Jihad.”
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DISCUSSION

Atallinni argues that the court abused its discretion by denying his motion for 

relief from the default. The argument lacks merit.

Section 473, subdivision (b) consists of discretionary and mandatory provisions 

for relief from default. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 

Cal.App.4th 432, 438.) The discretionary provision states that the court “may” relieve a 

party from a default obtained through the party’s “mistake, inadvertence, surprise, or 

excusable neglect.” (§ 473, subd. (b).) The party must move for discretionary relief 

within “a reasonable time, in no case exceeding six months” after entry of the default. 

(Ibid.) The mandatory provision states that the court “shall” relieve the party from a 

default when the motion is supported by an attorney’s “sworn affidavit attesting to his or 

her mistake, inadvertence, surprise, or neglect,” unless the court finds that the attorney’s 

actions did not in fact cause the default. (Ibid.) The defaulting party must bring a motion 

based on attorney fault “no more than six months after entry of judgment.” (Ibid.)

Here, Atallinni fails to show that the court abused its discretion by denying his 

motion for relief from the default. While his opening brief discusses section 473 and 

related case law, he fails to apply that law to the facts of this case and demonstrate how 

the trial court erred. Instead, he asserts in a conclusory manner that his motion was 

timely and that “the mistake, inadvertence, surprise, or excusable neglect” prevented him 

from timely responding to the cross-complaint. But we presume that the trial court’s 

order was correct, and Atallinni bears the burden of demonstrating reversible error. 

(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We have no duty to develop 
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his arguments for him. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 

939, 956; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.) 

Atallinni’s conclusory statements fail to carry his burden.

Moreover, our review of the record discloses that the trial court did not err by 

denying Atallinni’s motion. Atallinni’s counsel acknowledged that he had been served 

with the cross-complaint, and counsel did not declare that he was responsible for the 

failure to respond to the cross-complaint. There was thus no basis for relief under the 

mandatory provision for attorney fault. And the moving papers did not set forth any basis 

for relief under the discretionary provision. Nothing in the motion or counsel’s 

declaration showed that the failure to respond to the cross-complaint was the result of 

Atallinni’s mistake, inadvertence, surprise, or excusable neglect. Counsel stated that 

Atallinni’s physical disability interfered with his ability to communicate with counsel and 

respond to the cross-complaint, but that bare statement did not carry Atallinni’s burden as 

the moving party. To establish excusable neglect, he had to show that he acted as “a 

reasonably prudent person [would] under the same circumstances.” (Conway v.

Municipal Court (1980) 107 Cal.App.3d 1009, 1017.) The court had no basis to conclude 

that Atallinni had acted as a reasonably prudent person, in the absence of any information

about Atallinni’s claimed disability or any explanation of how it prevented him from 

responding to the cross-complaint.

Counsel’s supporting declaration also stated that opposing counsel failed to 

provide advance notice that Jihad was requesting the default. While counsel may have an 

ethical obligation to warn opposing counsel before requesting entry of the default, in the 
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absence of an attorney affidavit of fault, the failure to warn does not require the court to 

grant relief from the default. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 701-

702 & fn. 10.) The court still has discretion to deny relief, and we review that decision 

for abuse of discretion. As already explained, there was no abuse of discretion here. 

For all of these reasons, Atallinni fails to show that the court erred by denying his 

motion for relief from the default.2 

DISPOSITION

The judgment is affirmed. Jihad and Elias shall recover their costs of appeal.

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(Cal. Rules of Court, rule 8.278(a)(1).) 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ

J.

We concur:

MILLER

Acting P. J.

RAPHAEL

J.

2 Early in his opening brief, Atallinni identifies several other rulings or findings that 

he purports to challenge, but he never mentions them in the argument section of his brief. 

He therefore forfeited those challenges. (In re Marriage of Falcone & Fyke, supra, 164 

Cal.App.4th at p. 830 [appellant forfeited contentions that were not supported by “cogent 

legal argument or citation to authority”]; Kurinij v. Hanna & Morton (1997) 55 

Cal.App.4th 853, 865 [“[T]he appellant must present argument and authorities on each 

point to which error is asserted, or else the issue is waived”].)

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Jihad and Elias filed a request for judicial notice of the local court rule requiring

the parties to exchange certain documents before trial. We deny the request because that 

material is unnecessary to our resolution of the appeal. (County of San Diego v. State of

California (2008) 164 Cal.App.4th 580, 613, fn. 29.)