Borton Petrini, LLP v. Arshad

(49) Tentative Ruling

Re: Borton Petrini, LLP v. Arshad Superior Court Case No. 25CECG04350

Hearing Date: August 27, 2026 (Dept. 501)

Motion: By Defendant Muhammad Arshad to Set Aside the Default and Default Judgment

Tentative Ruling:

To deny defendant Muhammad Arshad’s motion to set aside the default and default judgment. (Code Civ. Proc., §§ 473, subd. (b), 473.5.)

Explanation:

Defendant Muhammad Arshad (“Defendant”) moves to set aside the default judgment that was entered against him by plaintiff Borton Petrini, LLP (“Plaintiff”). The bases for the motion to set aside in the moving papers are Code of Civil Procedure sections 473, subdivision (b), and 473.5, and equitable relief under Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13. Each of the bases raised are heavily fact dependent. The court lays out the following timeline of events based on what was presented in the declarations.

Timeline of Events

On July 9, 2025, Defendant filed a complaint with the State Bar of California concerning misconduct by Defendant’s former attorney, who works for Plaintiff. (Arshad Decl., ¶ 5.) On September 16, 2026, Plaintiff filed the present case against Defendant. On October 30, 2026, Defendant was tricked into going to Plaintiff’s offices under the impression that they would be discussing the issues Defendant had with his prior representation by Plaintiff. (Id., ¶ 4; Umana Decl., ¶ 3.) Defendant was handed an envelope, told to open the envelope outside, and asked to leave Plaintiff’s offices. (Ibid.)

The envelope contained the summons and complaint such that Plaintiff effectuated personal service on Defendant on October 30, 2025. (Umana Decl., ¶ 3.) During the period of September 1, 2025 through January 16, 2026, Defendant was suffering a lot of stress due to final examinations for his master’s program, issues arising from the alleged prior attorney misconduct, and ongoing guardianship proceedings in Pakistan for Defendant’s minor daughter. (Arshad Decl., ¶ 7.) On January 8, 2026, default was entered against Defendant.

On January 12, 2026, default judgment was entered. On February 13, 2026, Defendant filed his first motion to set aside the judgment.

Applicability of Code of Civil Procedure Section 473, Subdivision (b)

Code of Civil Procedure section 473, subdivision (b), states in pertinent part, “The court may, upon any terms as may be just, relieve a party or the party’s legal representative from a judgment, dismissal, order, or other proceeding taken against the 11

party through the party’s mistake, inadvertence, surprise, or excusable neglect.” “[N]eglect is excusable if a reasonably prudent person under similar circumstances might have made the same error.” (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 929.) “[T]he rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985.)

Defendant argues excusable neglect as the basis for failing to file a timely responsive pleading. Defendant points to the fact that he was tricked into going to Plaintiff’s offices and the different stressors Defendant was going through at the time as to why a reasonably prudent person might fail to file a timely response. However, a reasonably prudent person would open the envelope upon receiving it and read the papers within. The first line of the body of the summons states, “NOTICE! You have been sued.

The court may decide against you without your being heard unless you respond within 30 days. Read the information below.” A reasonably prudent person would realize they have a limited amount of time to take action before the court may rule against them. Defendant had 70 days from the date of service to file any response before default was entered. Defendant’s failure to take any action is not excusable. Accordingly, Defendant has failed to demonstrate he is entitled to relief under Code of Civil Procedure section 473, subdivision (b).

Applicability of Code of Civil Procedure Section 473.5

Relief under Code of Civil Procedure section 473.5 requires that Defendant not have received actual notice and the lack of notice was not caused by Defendant’s inexcusable neglect. Defendant has not disputed that he was served with the summons and complaint. Defendant disputes the trickery by Plaintiff to get Defendant to Plaintiff’s offices. However, the trickery involved does not change that Defendant was personally served. Either Defendant read the papers upon receiving them and had actual notice or Defendant did not read them until months later. No excusable neglect exists here for Defendant to not have read the summons and complaint upon receiving them. A reasonably prudent person would have read the papers upon receiving them and have actual notice. Accordingly, Defendant has failed to demonstrate he is entitled to relief under Code of Civil Procedure section 473.5.

Applicability of Equitable Relief

A party seeking relief under the court’s equitable powers must satisfy a threepronged test: “(1) a satisfactory excuse for not presenting a defense, (2) a meritorious defense, and (3) diligence in seeking to set aside the default.” (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 29; citing Rappleyea, supra, 8 Cal.4th at pp. 982- 983.) “Relief will be denied, however, if the complaining party's negligence permitted the fraud to be practiced or the mistake to occur. [Citation]” (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 30.)

Defendant provides the same excuse he used for arguing relief under Code of Civil Procedure section 473, subdivision (b), that Defendant argues the trickery to have him arrive at Plaintiff’s offices for service as well as the other stressors excuse why Defendant did not present a timely defense. For the same reasons, Defendant’s failure 12

to take action is not a satisfactory excuse. Therefore, relief is denied under the court’s equitable powers. Accordingly, the motion to set aside the default and default judgment is denied.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 08/25/26. (Judge’s initials) (Date)

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