Motion to Set Aside Default; Motion to Quash Service of Summons
dates of admission and attests to her good standing. The application states Attorney Arce has submitted three applications in the last two years. The motion has been served on the State Bar of California at its San Francisco address and Attorney Abed attests that the application fee has been paid. (Cal. Rules Ct., Rule 9.40(c)-(e).)
The moving attorney to give notice.
7 Code 4 Media OFF CALENDAR Group, Inc. vs. Kim 8 Ha vs. Nguyen TENTATIVE RULING:
For the reasons set forth below, Defendant Anh Quang Nguyen’s motion to set aside default is GRANTED.
Defendant’s motions to quash service of summons are restored and set for hearing on September 30, 2026, at 9:00 a.m. in this Department.
Violation of Cal. R. Ct., rule 3.1113, subd. (d)
As a preliminary matter, Defendant’s motion violates Cal. R. Ct., rule 3.1113, subd. (d), which provides that “[e]xcept in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages.” Defendant’s motion is 20 pages.
However, the court will exercise its discretion to proceed on the merits.
Procedural History
The instant motion was previously set for 11/12/25. This court tentatively granted the motion on the grounds that Plaintiffs failed to oppose. However, Plaintiffs filed an Opposition and Declaration on 11/12/25 stating that they were never served with the instant motion despite the proof of electronic service.
Plaintiffs argue in their Opposition that Defendant’s failure to serve the motion denied Plaintiffs a meaningful opportunity to respond, and requested that the court continue the motion and allow Plaintiffs to file a full written opposition. The court continued the motion.
Default was entered against Defendant on 9/6/24. Defendant moves to set aside entry of default pursuant to Code Civ. Proc. § 473, subds. (b) and (d).
Statement of Law
“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (
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“The court may relieve a party from a judgment entered against it through its ‘mistake, inadvertence, surprise or excusable neglect.’ [Citation.] But the motion under this section must be made within six months from the entry of the default or the default judgment.” (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1299.)
“The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed. [Citation.] The six-month period runs from entry of default, not entry of judgment. [Citation.]” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42; see Kramer, supra, (2020) 56 Cal.App.5th 13, 39 [“The six-month period for granting relief under section 473, subdivision (b), ‘runs from entry of default, not entry of judgment’ ”].)
Defendant filed this motion on 6/30/25, well after the six-month deadline. Accordingly, relief pursuant to Code Civ. Proc. § 473, subd. (b) is untimely.
In the alternative, Defendant moves for relief pursuant to Code Civ. Proc. § 473, subd. (d), on the basis that the judgment is void, as Defendant had filed a motion to quash on the same day that default was entered.
Code of Civil Procedure Section 473, subdivision (d), provides that: “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (See Code Civ. Proc., § 473, subd. (d)).
Defendant contends that he was served on 8/8/24 (though he contests that service was proper) and filed his motion to quash on 9/6/24. Default was entered that same day, on 9/6/24, and Defendant contends that default was entered in violation of Code Civ. Proc. § 418.10, subd. (d), which provides: “No default may be entered against the defendant before expiration of his or her time to plead.” However, the proof of service provides that Defendant was personally served with the complaint, summons, ADR package and civil case cover sheet on 7/17/24. (See POS [ROA 12]). Therefore, this argument fails.
Defendant also argues that Defendant filed his motion to quash (he filed two, one in person and one electronically) the same day that the default was entered. He argues that his motions to quash were either still pending or not yet administratively processed when the default was entered.
Plaintiffs did not address this argument in their Reply. The only arguments Plaintiffs present against Code Civ. Proc. § 473, subd. (d) is that there is a valid proof of service on file, that Defendant was actually served, and that a self-serving denial of receipt does not rebut that presumption of proper service. While these may be proper arguments in opposition to the motion to quash, Plaintiffs do not address the timing of the filing of the motion to quash and whether the filing precluded Plaintiffs from obtaining default.
It is axiomatic that the failure to challenge a contention in a brief results in the concession of that argument. (DuPont Merck Pharmaceutical Co. v. Sup. Ct. (2000) 78 Cal.App.4th 562, 566 (“By failing to argue the contrary, plaintiffs concede this issue”); Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 (“failure to address the threshold question . . . effectively concedes that issue and renders its remaining arguments moot”); Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424 (issue is impliedly conceded by failing to address it).)
Accordingly, the motion is granted.
Defendant shall give notice.
9 Irvine TENTATIVE RULING: Westpark Plaza LLC vs. Counsel Constantine Panagotacos and James Higgins of Dunn & Diesel 1 LLC Panagotacos LLP move to be relieved as counsel for the following Defendants: Diesel 1 LLC, 100 Percent Health Management, LLC,