Motion to Set Aside
In fact, it does not appear that Plaintiff was waiting on the detailed explanation as he did not request it until May 22, 2026, more than 4 months after the court issued its ruling on the Special Motions to Strike. (See ROA #221.) (fn.1)
(fn.1) While Defendant Leonard S. Carlin did request the detailed explanation on February 2, 2026, the court clerk’s office inadvertently did not process it until May 2026.
For at least 5 months (and as many as 9 months), Defendant Reiser has been laboring under the impression that Plaintiffs were not asserting claims against him. It would be unfair and prejudicial to allow Plaintiff to revive claims that have been abandoned months ago.
Defendant Reiser shall give notice of this ruling.
7 Bank of America N.A. vs. Motion to Set Aside Husain Defendant Manzur Husain’s Motion to Set Aside Default and Vacate Default Judgment is GRANTED.
The Default entered against Defendant Manzur Husain on April 22, 2025 is SET ASIDE.
The Default Judgment against Defendant Manzur Husain issued on May 6, 2025 is VACATED.
Defendant Manzur Husain is ORDERED to file his answer to the Complaint within 15 days of this ruling, and to serve his answer on all parties that have appeared in this matter within 60 days of this ruling.
The court SETS a Case Management Conference for October 15, 2026 at 9:00 a.m. in Department N15.
Pending Motion
Defendant moves to set aside the Default entered against him on April 22, 2025 (ROA #15) and the Default Judgment against him issued on May 6, 2025 (ROA #14) pursuant to Civil Procedure Code section 473.5 and 473(d). Defendant also requests a stay of enforcement of the Default Judgment and permission to file and serve an answer to the Complaint filed by Plaintiff Bank of America, N.A.
Standard to Set Aside Entry of Default and/or Default Judgment
Civil Procedure Code section 473.5 states:
When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against the party; or (ii) 180 days after service on the party of a written notice that the default or default judgment has been entered.
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(Code Civ. Proc., § 473.5, subd. (a).)
A motion brought pursuant to Section 473.5 must be “accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect” as well as “a copy of the answer, motion, or other pleading proposed to be filed in the action.” (Code Civ. Proc., § 473.5, subd. (b).)
In addition, Civil Procedure Code section 473(d) states that “[t]he court . . . may may, on motion of either party after notice to the other party, set aside any void judgment or order.” ((Code Civ. Proc., § 473, subd. (d).)
“[I]f a default judgment was entered against a defendant who was not served with a summons as required by statute, the judgment is void, as the court lacked jurisdiction in a fundamental sense over the party and lacked authority to enter judgment.” (Kremerman v. White (2021) 71 Cal.App.5th 358, 370.)
While the trial court “retains discretion to grant or deny a motion to set aside a void judgment” under Section 473(d), it does not have discretion “to set aside a judgment that is not void” in the first instance. (Id. at p. 369.)
Here, Defendant contends that he was never served with the Summons and Complaint, and therefore, did not receive actual notice of the lawsuit.
Plaintiff points to the fact that it filed a proof of service signed by a registered process server showing that Defendant was served with the Summons and Complaint on February 2, 2025. (See ROA #10.)
“The return of a [registered] process server [] upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” (Evid. Code, § 647; see Floveyor Int’l, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795; American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390 [“Evidence Code section 647 provides that a registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration.”].)
The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428.) Merely denying service took place without more is insufficient to overcome the presumption. (See id. at p. 1428.)
Here, Defendant filed declaration explaining that he has a firm personal practice of not opening doors to unexpected visitors or strangers, that his apartment complex has building numbers that are high up and difficult to find, that he never opened the door to any process server at any time related to this case, that he did not verbally identify himself to anyone, that he did not receive any legal documents related to this case, and that the description in the proof of service does not match his description. (See Decl. of Manzur Husain in Supp. of Mot. to Set Aside Default, Vacate Default J., and Stay of Execution (Husain Decl.), ¶¶ 4-7).
Defendant’s declaration is contains sufficient facts and details to overcome the presumption created by Section 647.
In response, Plaintiff only provides the declaration of its Counsel, who states that a demand letter and an intent to sue letter were mailed to Plaintiff
prior to the filing of the Complaint. (See Decl. of Alexander Balzer Carr, ¶ 2, Exh.s 1-2.)
However, the fact that Plaintiff sent pre-litigation letters to Defendant is irrelevant to the issue of whether Defendant received notice of this lawsuit.
Plaintiff’s Counsel also attaches photos that were “taken by the process server near the time service was effected.” (See id., ¶ 3, Exh. 3.)
Plaintiff’s Counsel lacks the personal knowledge and foundation to authenticate these photos, and the court cannot consider them.
Plaintiff’s Counsel also states that “a copy of the default judgment packet was mailed to Defendant at the service address on or about April 22, 2025.” (Id., ¶ 4.)
However, Plaintiff’s Counsel presents no proof of service for the default judgment packet.
In any case, the fact that the default judgment packet, which is a technical document, was mailed to Defendant is only weak evidence that he had notice of this action.
Further, Plaintiff points to no undue prejudice that it will suffer as result of granting the motion.
Thus, considering all of the evidence presented and taking into account the policy that favors resolution of claims on the merits rather than by default, the court finds that Defendant has shown that he did not have actual notice of this action. (See Iott v. Franklin (1988) 206 Cal.App.3d 521, 526 [law favors trial on the merits and doubts in vacating default should be resolved in favor of party seeking relief where no prejudice is shown].)
Plaintiff also argues that Defendant cannot obtain relief under Section 473.5 because Defendant filed the motion after six months from notice of entry of default.
However, Plaintiff fails to offer any evidence that notice of the default or notice of entry of default judgment was served on Defendant.
The Plaintiff’s Counsel’s declaration only states that, “A copy of the default judgment packet was
mailed to Defendant at the service address on or about April 22, 2025 . . . .” (Carr Decl., ¶ 4.)
However, the declaration does not state that a notice of entry of default or notice of entry of default judgment were sent to Defendant. For example, the declaration fails to identify what documents were included in the “default judgment packet.”
Further, the declaration does not indicate if the documents were properly served (as opposed to just mailed) on the Defendant.
Finally, it is not clear that Plaintiff’s Counsel has the personal knowledge or foundation to testify to this fact. The declaration does not include information about who mailed the default judgment packet and how they mailed it, nor does it include a proof of service for the default judgment packet.
For this reason, Plaintiff had until “two years after entry of a default judgment” to file and serve his motion to set aside default.
Judgment was entered against Defendant on May 6, 2025, so that this motion had to filed and served by May 6, 2027. (See ROA #14.)
Defendant filed the instant motion on March 4, 2026, so that it is timely.
Therefore, the court will grant the motion to set aside and allow Defendant to file his answer.
A stay of enforcement of the Default Judgment is unnecessary because the court will vacate the Default Judgment.
Defendant shall give notice of this ruling.
8 Hendrix vs. Farshidi Motion for Summary Judgment
Defendants Farnoosh Farshidi, M.D.’s and 30-2025-01451171 Farnoosh Farshidi, M.D. Inc.’s Motion for Summary Judgment is taken OFF CALENDAR pursuant Defendants Farnoosh Farshidi, M.D. and Farnoosh Farshidi, M.D. Inc.’s Notice of Taking Motion For Summary Judgment Off Calendar filed June 4, 2026 (ROA #49).