Motion to Set Aside Default
Even if mandatory dismissal was not required under CCP 583.210 and CCP 583.250, discretionary dismissal under CCP 583.420(a)(1) is warranted. Regardless of whether the service deadline is calculated from the original complaint or the First Amended Complaint, Plaintiff did not serve Ricca within two years of filing. Therefore, Plaintiff has the burden of showing excusable delay. Terzian, supra; Salas (1986) 42 C3d 342, 347; Clark, supra at 55. Here, Plaintiff has failed to provide any reason for the delay. As such, Plaintiff has not met the burden of establishing excusable delay, especially considering the prejudice to Ricca by being brought into the case at this late date. See Clark, supra at 58. CONCLUSION The motion is granted.
Date: 8/17/26 TRIAL DATE: 7/19/27 Case #25CHCV00845 MOTION TO SET ASIDE DEFAULT Motion filed on 3/2/26. MOVING PARTY: Defendant Kamal Houssain RESPONDING PARTY: Plaintiff Kenk USA Inc. RELIEF REQUESTED: An order setting aside the default entered on 4/24/25 against Defendant Kamal Houssain. RULING: The motion is denied. SUMMARY OF FACTS & PROCEDURAL HISTORY This action arises out of the alleged embezzlement/conversion of over $2 million from Plaintiff Kenk USA Inc. (Plaintiff) by employees, Defendants Sabah Mou (Mou), convenience store manager, and Defendant Kamal Hossain (Hossain) (collectively, Defendants), cashier.
Plaintiff alleges that from approximately January 2022 through December 2024, Defendants "intentionally and deliberately exercised wrongful dominion over approximately two million, two hundred eighty two thousand and forty-four dollars and ninety-five cents ($2,282,044.95) of Plaintiff's cash revenue." (See Complaint P.P.9-16). On 3/10/25, Plaintiff filed this action against Defendants for: (1) Conversion, (2) Aiding and Abetting In Conversion; (3) Embezzlement and Misappropriation of Funds; (4) Aiding and Abetting in Embezzlement and Misappropriation of Funds; (5) Negligence and (6) Imposition of a Constructive Trust Pursuant to Civil Code 2223, 2224, et seq.
On 3/19/25, Hossain was personally served with the summons and complaint. (See Proof of Service filed 3/25/25). On 4/24/25, default was entered against Hossain. On 5/23/25, Mou answered the complaint. On 12/4/25,
Hossain, without counsel, appeared at the Case Management Conference. On 3/2/26, Hossain, represented by counsel, Ron Quijada of the Law Offices of Ron Quijada, filed and served the instant motion seeking an order setting aside the default entered against him on 4/24/25. The hearing on the motion was originally scheduled for 7/17/26. On 7/3/26, Plaintiff filed and served an opposition to the motion. The proofs of service attached to the opposition show that it was served on counsel for co-Defendant Mou, John Bussman of Absolute Law Group, and Hossain, "in pro per." (See Opposition, pdf 8-11).
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There was no indication that the opposition was served on attorney Quijada who filed this motion on behalf of Hossain. Further, the address listed for Hossain in the proof of service for the opposition is defective in that it lists the city as "Chatsworth Irvine." (See Opposition, pdf 11). No reply to the opposition had been filed in relation to the 7/7/26 hearing date. On 7/17/26, the hearing on the motion was continued to 8/17/26 and Plaintiff was ordered to serve the opposition on attorney Ron Quijada. (See 7/17/26 Minute Order).
Any reply to the opposition was due to be filed and served at least 5 court days before the 8/17/26 hearing date. Id. On 7/17/26, Plaintiff filed and served a Proof of Service of the opposition documents filed on 7/3/26 showing that they were served in attorney Quijada on 7/17/26 by U.S. mail and email. Hossain has not filed a reply to the opposition. ANALYSIS Plaintiff's objections, numbers 1-5, to the declaration of Kamal Hossain are overruled. Plaintiff's objections, numbers 1-3, to the declaration of Luftun Sima are overruled.
An application for relief under CCP 473(b) "shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order or proceeding was taken." CCP 473(b). Here, the motion was filed well beyond the six month deadline set forth in CCP 473(b). Therefore, Hossain requests equitable relief to which the six-month deadline does not apply based on extrinsic mistake. See Rappleyea (1994) 8 C4th 975, 980-981; Kramer (2020) 56 CA5th 13, 29; Zamora (2002) 28 C4th 249, 259.
To qualify for equitable relief based on extrinsic mistake, the defendant must demonstrate: (1) a meritorious defense; (2) a satisfactory excuse for not presenting a defense to the original action; and (3) diligence in seeking to set aside the default once discovered. Rappleyea, supra 982-983; Stiles (1983) 147 CA3d 1143, 1148. Such equitable relief is not "meant to extend relief to defendants who fail to file an answer because they are ignorant of the law." Id. at 1147. Relief is not warranted when the defendant's negligence permitted the mistake to occur.
Manson, Iver & York (2009) 176 CA4th 36, 47. Hossain fails to meet the second and third requirements for having the default set aside on the equitable ground of extrinsic
mistake. Hossain fails to adequately explain why he did not timely respond to the complaint after being personally served with the summons, which sets forth that a response is due within 30 days, and complaint on 3/19/25. (See Nino Decl., Ex.A). While Hossain and his daughter generally state that they attempted to retain counsel and eventually found a paralegal to assist them on 10/7/25, they fail to set forth an exact timeline of events or explain why it took approximately 7 months to do so. (See Hossain Decl.; Sima Decl.).
Hossain and his daughter also fail to explain why it took another month after retaining the paralegal to attempt to file a response to the complaint on 11/7/25. (Hossain Decl.; Sima Decl.). Additionally, contrary to Hossain's assertion, he did not act diligently in seeking to have the default set aside after discovering it had been entered. Hossain admits learning that the 4/24/25 default had been entered on 11/7/25. (See Hossain Decl.; Sima Decl.). However, Hossain did not file the instant motion until 3/2/26, almost four months later.
CONCLUSION The motion is denied. Case Number: 26CHCV00002 Hearing Date: August 17, 2026 Dept: F47 Dept. F47 Date: 8/17/26 Case #26CHCV00002 DEMURRER TO THE ORIGINAL COMPLAINT Demurrer filed 3/11/26. MOVING PARTY: Defendants Planet Home Lending, LLC and Federal National Mortgage Association RESPONDING PARTY: Plaintiff Tony Chavez NOTICE: ok RULING: The demurrer is placed off calendar. On 1/2/26, Plaintiff Tony Chavez (Plaintiff) filed this action against Defendants Planet Home Lending, LLC and Federal National Mortgage Association (collectively, Defendants) and others alleging a single cause of action for quiet title.
After meet and confer efforts failed to resolve the issues Defendants had with the complaint, on 3/11/26, Defendants filed and served the instant demurrer to the complaint. On 8/4/26, 9 court days before the hearing on the demurrer, Plaintiff filed and served a First Amended Complaint rendering the demurrer moot. See CCP 472(a); CCP 1005(b). | Home -->)" -->