Herbert Bagoro Amanya v. Roy Martin II

CONCLUSION Based on the analysis above, the motion for summary judgment is GRANTED.

Roy Martin II's Motion to Set Aside Entry of Default and Default Judgment Respondent: Plaintiff Herbert Bagoro Amanya

Defendant Roy Martin II's Motion to Set Aside Entry of Default and Default Judgment is GRANTED.

BACKGROUND This is an action for breach of fiduciary duty.

On December 9, 2014, defendant Roy Martin II (Martin) allegedly formed nonparty Avani Home, Inc. (Avani).

In 2017, Martin and plaintiff Herbert Bagoro Amanya (Bagoro) allegedly entered into an oral agreement to form a partnership to own and operate Avani and allegedly borrowed $85,000.00 to purchase an existing adult residential care facility business.

In 2020, Martin and Bagoro allegedly obtained a Small Business Administration (SBA) loan to purchase real property in Covina, California to operate the business.

In 2021, Martin and Bagoro allegedly paid of the $85,000.00 loan.

On January 14, 2022, Martin allegedly filed a statement of information listing himself and Bagoro as officers and directors of Avani and listing the Covina address as the principal place of business as a residential care facility.

On June 19, 2023, Martin allegedly filed a statement of information listing himself as the sole officer and director of Avani.

On September 13, 2023, Bagoro filed the Complaint.

On September 4, 2024, Bagoro filed the operative Amended Complaint, alleging causes of action for (1) breach of fiduciary duty, (2) breach of contract, (3) conversion, (4) unjust enrichment, (5) accounting, and (6) constructive trust.

On October 29, 2024, the court entered default against Martin.

On January 27, 2025, the court issued a default judgment in favor of Bagoro and against Martin.

On August 6, 2026, Martin filed this motion to set aside entry of default and vacate default judgment.

On August 21, 2026, Bagoro filed the opposition, and on August 26, 2026, Martin filed the reply.

The motion is set for hearing on September 3, 2026.

ANALYSIS Martin moves to set aside the entry of default and to vacate the resulting default judgment on the grounds that (1) the entry of default and the default judgment were void because the court lacked jurisdiction over Martin; (2) service did not give Martin actual notice; and (3) the default judgment is inequitable.

For the following reasons, the motion is GRANTED.

Legal Standard

The court may relieve a party from a voidable judgment or order if the application is made within a reasonable time, six months at the longest. (Code Civ. Proc., Sec. 473, subd. (b), emphasis added.)

"The court may . . . set aside any void judgment or order" at any time. (Code Civ. Proc., Sec. 473, subd. (d), emphasis added.)

The court may "set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service." (Braugh v. Dow (2023) 93 Cal.App.5th 76, 88; see also Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808, noting that "[a] default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.")

A motion brought under Code of Civil Procedure section 473, subdivision (d) to vacate a judgment that is void for lack of proper service "is not subject to the judicially imposed two-year limitation" of Section 473.5. (Cal. Capital Ins. Co. v. Hoehn (2024) 17 Cal.5th 207, 225.)

Discussion

Martin argues that the entry of default and the default judgment are void because the court lacked personal jurisdiction over him as the result of Bagoro's failure to serve him in this action.

The court agrees.

"[A] summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge . . . and by thereafter mailing a copy of the summons and of the complaint . . . to the person to be served at the place where a copy of the summons and complaint were left." (Code Civ. Proc., Sec. 415.20, subd. (b).)

"The return of a [registered process server] . . . upon process . . . establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return." (Evid. Code, Sec. 647.)

The proof of service reflects that the process server attempted to serve Martin by substituted service by leaving the documents with a John Doe at Avani's principal place of business in Covina and mailing the documents thereafter. (See 9/20/2024 POS, P. 5.)

Even though the process server's proof of service creates a presumption that service was completed according to the facts stated in the return, Martin's testimonial evidence rebuts this presumption. (See Evid. Code, Sec. 647.)

According to Avani's administrator, the facility was closed and unoccupied when the process server attempted service, and no person at Avani matches the description of the person with whom the process server claims to have left the documents. (See Mot., Walker Decl., P.P. 5-8.)

According to Martin, he did not receive service of process from the process server's attempt at substituted service. (See Mot., Martin Decl., P. 7.)

Further, Amanya's opposition does not present contradictory evidence to argue that the process server completed substituted service as reflected in the proof of service.

Instead, Amanya's counsel merely presumes that the service was successful. (See Opp., Carter Decl., P. 9, stating only that "[o]n September 16, 2024[,] defendant was subserved with the First Amended Complaint.")

On this record, the court cannot conclude that Amanya served Martin by substituted service.

Thus, the court finds it did not have jurisdiction to enter default against Martin and to issue a default judgment against him.

Therefore, the entry of default and default judgment are void.

Accordingly, the motion to set aside entry of default and vacate default judgment is GRANTED.

The parties' arguments as to service and actual notice and equitable relief are HELD IN ABEYANCE.

CONCLUSION For these reasons, the motion to set aside default and default judgment is GRANTED.

Plaintiff is directed to serve Defendant Martin, forthwith.

Case Number: 25PSCV01468 Hearing Date: September 3, 2026 Dept: G Plaintiff East West Bank's Application for Default Judgment Respondent: NO OPPOSITION Plaintiff East West Bank's Motion for an Order Depositing the Interpleader Funds with the Clerk; Discharge and Dismissal of Plaintiff East West Bank from Interpleader Action; and Accounting and Reimbursement of Attorney's Fees and Costs Respondent: Defendants ACD International Trade and Miao Liu TENTATIVE RULING Plaintiff East West Bank's Application for Default Judgment is GRANTED.

Plaintiff East West Bank's Motion for an Order Depositing the Interpleader Funds with the Clerk; Discharge and Dismissal of Plaintiff East West Bank from Interpleader Action; and Accounting and Reimbursement of Attorney's Fees and Costs is