Bazilaiti Yiming vs. Aimaitjiang Alafati, Nadila Muhetear, and Does 1-50

| Case Name: Bazilaiti Yiming vs. Aimaitjiang Alafati, Nadila Muhetear, and Does 1-50 | Case No. 24CHCV04089 | LOS ANGELES SUPERIOR COURT NORTH VALLEY DISTRICT DEPARTMENT F49 SEPTEMBER 9, 2026 MOTION TO SET ASIDE ENTRY OF DEFAULT Los Angeles Superior Court Case No. 24CHCV04089 Motion filed: 4/9/26 MOVING PARTY: Defendant Nadila Muhetear RESPONDING PARTY: Plaintiff Bazilaiti Yiming NOTICE: OK RELIEF REQUESTED: An order from this Court setting aside the clerk's entry of default against Defendant Nadila Muhetear.

TENTATIVE RULING: The motion is GRANTED. BACKGROUND This action arises out of an alleged fraudulent grant deed recorded by Defendants Aimaitjiang Alafati ("Alafati") and Nadila Muhetear ("Muhetear") (collectively, "Defendants"). On November 6, 2024, Plaintiff Bazilaiti Yiming ("Plaintiff") filed a Complaint against Defendants and Does 1 through 50, alleging the following causes of action: (1) Cancellation of a Written Instrument, (2) Quiet Title, (3) Equitable Lien, (4) Constructive Trust, (5) Restitution and Unjust Enrichment, (6) Declaratory Relief, (7) Accounting, (8) Conversion, and (9) Negligence.

On January 3, 2025, default was entered against Muhetear. On July 2, 2025, Muhetear filed a purported Answer to the Complaint and a motion to set aside the entry of default. On January 5, 2026, that motion was denied due to deficient service. On April 9, 2026, Muhetear filed the instant motion to set aside the entry of default (the "Motion"). On August 26, 2026, Plaintiff timely filed an Opposition to the Motion. ANALYSIS Code of Civil Procedure section 473 authorizes the Court to set aside default "taken against a party through the party's mistake, inadvertence, surprise, or excusable neglect." (Sec. 473, subd. (b).)

This discretionary relief provision "is often applied liberally where the party in default moves promptly

to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.]" (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) "[B]ecause the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. [Citations.]" (Ibid.) Pursuant to Code of Civil Procedure section 473.5, where the Court determines that service did not result in actual notice to the responding party in time to defend the action, and that the lack of notice "was not caused by the party's avoidance of service or inexcusable neglect, it may set aside the default ... on whatever terms as may be just and allow the party to defend the action." (Sec. 473.5, subd. (c).)

Muhetear seeks to set aside the January 3, 2025 entry of default on the following bases: (1) procedural defects in the Request for Entry of Default, (2) excusable neglect, (3) lack of actual notice of the action, and (4) failure to warn Muhetear's counsel of the impending default. A. Request for Judicial Notice A court may take judicial notice of "[r]ecords of ... any court of this state." (Evid. Code, Sec. 452, subd. (d).) A court must take judicial notice of court records if a party requests it, provides sufficient notice to each adverse party, and furnishes the court with sufficient information to enable it to take judicial notice. (Sec. 453.)

Upon taking notice of court records, the court accepts as true only that (1) they were filed, and (2) the assertions therein were made; the court does not take notice of the truth of their contents. (See Joslin v. H.A.S. Insurance Brokerage (1986) 184 Cal.App.3d 369, 374-375; see also Day v. Sharp (1975) 50 Cal.App.3d 904, 916.) Plaintiff requests that the Court take judicial notice of the following records in Los Angeles Superior Court Case No. 23STFL12288: (1) the Minute Order issued on October 4, 2024, (2) the Minute Order issued on February 20, 2026, and (3) the Minute Order issued on March 26, 2026.

Plaintiff further requests that the Court take judicial notice of the following records in the instant case: (1) the proof of service filed on November 12, 2024, (2) the Request for Entry of Default filed on January 3, 2025, and (3) the Minute Order issued on January 5, 2026. The foregoing are records of courts of this state and are proper subjects of judicial notice. The Court accordingly grants the request. B. Validity of the Request for Entry of Default Muhetear asserts that Plaintiff's Request for Entry of Default was procedurally defective because no box was checked corresponding to the relief requested on the CIV-100 form filed by Plaintiff. (Mot., at p. 8.)

Muhetear cites Carslon v. Eassa (1997) 54

Cal.App.4th 684 as supporting the notion that an entry of default is void where all the boxes are not properly checked on the default form. In Carlson, however, the issue before the court was whether a district attorney's failure to obtain consent to a stipulated judgment in an action brought pursuant to the Uniform Reciprocal Enforcement of Support Act voids the judgment. (Carlson, 54 Cal.App.4th, at p. 692.) That determination has no bearing on the entry of default here, and Muhetear offers no other authority to suggest that a technical defect renders the clerk's entry of default void.

The Court therefore does not find the entry of default to be void. C. Relief Under Section 473, Subdivision (b) (1) Timeliness of Motion A motion under the discretionary relief provision of section 473, subdivision (b) must be made "within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or other proceeding was taken." (Code Civ. Proc., Sec. 473, subd. (b).) The motion must be accompanied by a copy of the proposed responsive pleading. (Ibid.) The six-month limitation is an outer limit of the court's ability to grant relief. (Caldwell v.

Methodist Hospital (1994) 24 Cal.App.4th 1521, 1524.) A court has no authority to grant relief if the application is made outside the six-month period. (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340.) An application is considered to be "made" when it is served and filed. (Code Civ. Proc., Sec. 1005.5 ["A motion ... is deemed to have been made and to be pending before the court for all purposes, upon the due service and filing of the notice of motion."]; Arambula, supra, 128 Cal.App.4th, at p. 341 [finding plaintiff's motion for relief from summary judgment untimely where not served on defendant within the six-month period].)

Muhetear's default was taken on January 3, 2025. A motion for relief would accordingly be timely if filed and served by July 3, 2025. Here, while Muhetear previously filed a motion for relief from default on July 2, 2025, within the six-month period for making an application for relief, that motion was denied because Muhetear had not filed proof of service of the motion on Plaintiff. (Minute Order, Jan. 5, 2026, at p. 2.) There is still no indication that Muhetear "duly served" any motion for relief within the six-month period that expired in July 2025.

The instant Motion includes a concurrently filed proof of service indicating that the Motion was served on April 9, 2026, long after the six-month period expired. The Motion is accordingly not timely made under section 473, subdivision (b). D. Relief Under Section 473.5 (1) Form of Motion

A motion to set aside pursuant to Code of Civil Procedure section 473.5 "shall 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 the party's avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action." (Sec. 473.5, subd. (b).) Muhetear submits a declaration, signed under penalty of perjury, attesting to her lack of actual notice of the action.

Muhetear has also included with the Motion her proposed Answer to the Complaint. (See Muhetear Decl., Exh. C.) The Court finds that Muhetear has complied with the form requirement of Code of Civil Procedure section 473.5. (2) Timeliness A notice of motion to set aside entry of default based on lack of actual notice must 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." (Code Civ.

Proc., Sec. 473.5, subd. (a).) Where no written notice is served, the shorter 180-day period prescribed by Code of Civil Procedure section 473.5 is not triggered. (See Olvera v. Olvera (1991) 232 Cal.App.3d 32, 39, fn. 8.) A motion is filed within a reasonable time if there is a satisfactory excuse for the default and the defendant shows diligence in filing the motion after discovering the default. (Kendall v. Barker (1988) 197 Cal.App.3d 619, 625.) Here, Muhetear attests that she never received notice that a default had been entered against her. (Muhetear Decl., P. 8.)

She states that she did not learn of the action until June 20, 2025, when she conducted a search of both her and her husband's names on the Los Angeles Superior Court Civil Index to see if there were any claims related to her community property. (Id., P. 6.) Once Muhetear learned of the instant action, she immediately contacted her attorney and began preparing the Motion. (Id., P. 7.) Plaintiff contends that the Motion is untimely because it was not made within 180 days of service of the Request for Entry of Default. (Opp'n, at p. 5.)

A Request for Entry of Default, however, is not "written notice that the default ... has been entered." (See Code Civ. Proc., Sec. 473.5, subd. (a).) A Request for Entry of Default necessarily precedes actual entry of default. For the shorter 180-period to be triggered, notice that the default has actually been entered is required. Given that there is no indication Muhetear was served with notice that the default was entered, the Motion was thus timely if made within a reasonable time no later than two years after entry of default.

The Motion was filed on April 9, 2026, well within two years after default was entered. Moreover, immediately after learning of the action, Muhetear contacted her attorney to seek relief. She filed a motion for relief and a purported answer just 12 days after learning of the action and

the resulting default. Although procedurally defective, this quick move to address the default shows diligence in seeking to defend the action. The instant Motion was filed three months after the initial motion for relief was denied. The Court finds this to be reasonable given that Muhetear was concurrently handling matters in her dissolution proceeding. (See RJN, Exhs. 5, 6.) The Court finds that the Motion was timely made. (3) Grounds for Set-Aside (a) Lack of Actual Notice A registered process server's declaration of service establishes a presumption of valid service. (Evid.

Code, Sec. 647; American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390 (Zara).) That presumption may be rebutted by evidence that the defendant was not served. (Zara, at p. 390.) Plaintiff's Proof of Service of the Summons and Complaint is signed by registered process server Randy Buchanan, declaring that personal service on Muhetear was made on November 10, 2024. (Muhetear Decl., Exh. B.) The declaration creates a rebuttable presumption of valid service, and the burden shifts to Muhetear to produce evidence to rebut it.

Muhetear attests, in a declaration signed under penalty of perjury, that she was never personally served with the Summons and Complaint at the time and location noted in the Proof of Service. (Muhetear Decl., P. 2.) Although she admits routinely visiting the location, a court-monitored visitation site where she usually picks up her children once per week, she attests that no process server ever approached her or handed her any documents there. (Id., P. 3; Mot., at p. 4.) She further states that she did not conceal herself from any process server or try to evade service of process. (Id., P. 4.)

Muhetear attests that she only discovered the existence of the pending litigation because she conducted a routine search of the Los Angeles Superior Court Civil Index to investigate claims related to her community property. (Id., P. 6.) Muhetear satisfactorily rebuts the presumption that service of the Summons and Complaint was valid. (b) Failure to Warn Opposing Counsel "[A]n attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary's default. [Citation.]" (LaSalle v.

Vogel (2019) 36 Cal.App.5th 127, 135, italics in original.) This ethical obligation is "now reinforced by a statutory policy that all parties 'cooperate in bringing the action to trial or other disposition.'" (Id., at p. 137.) The failure to inform opposing counsel of an impending default is a factor supporting set-aside. (See id., at p. 138.) Muhetear attests that Plaintiff's attorney, Khachik Akhkashian,

knew Muhetear was represented by counsel when this action was initiated because he participated in proceedings connected with her dissolution action. (Muhetear Decl., P. 9.) She further attests that her attorney was not notified of either this action or the intent to request entry of default against her. (Ibid.) Plaintiff argues that Muhetear fails to supply evidence that her counsel informed Akhkashian that he would represent her in the instant action. (Opp'n, at p. 6.) This Motion, however, is premised on Muhetear's lack of knowledge of the action, and she could not have imparted knowledge to her attorney that she did not possess.

It can be presumed that Muhetear's counsel likewise lacked knowledge of the action to allow him to inform Akhkashian of Muhetear's representation status. The present circumstances are similar to the facts of Bellm v. Bellia (1993) 150 Cal.App.3d 1036. In Bellm, the defendant was represented in a separate action in which the defendant's and plaintiff's counsel were adversaries. (Bellm, at p. 1038.) The Court of Appeal, while finding no abuse of discretion in denying relief from default, decried the "lack of professional courtesy" of the plaintiff's counsel in failing to provide notice to the defendant's counsel of the impending default. (Ibid.)

While failure to warn of an impending default is generally a factor considered under the discretionary relief provision of section 473 (E.g., LaSalle, supra, 36 Cal.App.5th, at. p. 134-136), the Court finds that it supports Plaintiff's assertion here that she lacked actual notice of the action. Based on the foregoing, the Court finds that Plaintiff lacked actual notice of the action in time to defend and that the lack of notice was not due to her avoidance of service or inexcusable neglect. The Court accordingly GRANTS the Motion.

CONCLUSION The Court GRANTS Defendant Nadila Muhetear's Motion to Set Aside Entry of Default. Muhetear is ordered to serve and file her answer within 5 days. Moving party to give notice. Case Number: 24CHCV042089 Hearing Date: September 9, 2026 Dept: F49 Dept. F49 | Date: 9/9/26 | Case Name: Bazilaiti Yiming vs. Aimaitjiang Alafati, Nadila Muhetear, and Does 1-50 | Case No. 24CHCV04089 | LOS ANGELES SUPERIOR COURT NORTH VALLEY DISTRICT DEPARTMENT F49 SEPTEMBER 9, 2026

MOTION TO SET ASIDE ENTRY OF DEFAULT Los Angeles Superior Court Case No. 24CHCV04089 Motion filed: 4/9/26 MOVING PARTY: Defendant Nadila Muhetear RESPONDING PARTY: Plaintiff Bazilaiti Yiming NOTICE: OK RELIEF REQUESTED: An order from this Court setting aside the clerk's entry of default against Defendant Nadila Muhetear. TENTATIVE RULING: The motion is GRANTED. BACKGROUND This action arises out of an alleged fraudulent grant deed recorded by Defendants Aimaitjiang Alafati ("Alafati") and Nadila Muhetear ("Muhetear") (collectively, "Defendants").

On November 6, 2024, Plaintiff Bazilaiti Yiming ("Plaintiff") filed a Complaint against Defendants and Does 1 through 50, alleging the following causes of action: (1) Cancellation of a Written Instrument, (2) Quiet Title, (3) Equitable Lien, (4) Constructive Trust, (5) Restitution and Unjust Enrichment, (6) Declaratory Relief, (7) Accounting, (8) Conversion, and (9) Negligence. On January 3, 2025, default was entered against Muhetear. On July 2, 2025, Muhetear filed a purported Answer to the Complaint and a motion to set aside the entry of default.

On January 5, 2026, that motion was denied due to deficient service. On April 9, 2026, Muhetear filed the instant motion to set aside the entry of default (the "Motion"). On August 26, 2026, Plaintiff timely filed an Opposition to the Motion. ANALYSIS Code of Civil Procedure section 473 authorizes the Court to set aside default "taken against a party through the party's mistake, inadvertence, surprise, or excusable neglect." (Sec. 473, subd. (b).) This discretionary relief provision "is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.]" (Elston v.

City of Turlock (1985) 38 Cal.3d 227, 233.) "[B]ecause the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. [Citations.]" (Ibid.) Pursuant to Code of Civil Procedure section 473.5, where the Court determines that service did not result in actual notice to the responding party in time to defend the action, and that the lack of notice "was not caused by the party's avoidance of service or inexcusable neglect, it may set aside the default ... on whatever terms as may be just and allow the party to defend the action." (Sec. 473.5, subd. (c).)

Muhetear seeks to set aside the January 3, 2025 entry of default on the following bases: (1) procedural defects in the Request for Entry of Default, (2) excusable neglect, (3) lack of actual notice of the action, and (4) failure to warn Muhetear's counsel of the impending default. A. Request for Judicial Notice A court may take judicial notice of "[r]ecords of ... any court of this state." (Evid. Code, Sec. 452, subd. (d).) A court must take judicial notice of court records if a party requests it, provides sufficient notice to each adverse party, and furnishes the court with sufficient information to enable it to take judicial notice. (Sec. 453.)

Upon taking notice of court records, the court accepts as true only that (1) they were filed, and (2) the assertions therein were made; the court does not take notice of the truth of their contents. (See Joslin v. H.A.S. Insurance Brokerage (1986) 184 Cal.App.3d 369, 374-375; see also Day v. Sharp (1975) 50 Cal.App.3d 904, 916.) Plaintiff requests that the Court take judicial notice of the following records in Los Angeles Superior Court Case No. 23STFL12288: (1) the Minute Order issued on October 4, 2024, (2) the Minute Order issued on February 20, 2026, and (3) the Minute Order issued on March 26, 2026.

Plaintiff further requests that the Court take judicial notice of the following records in the instant case: (1) the proof of service filed on November 12, 2024, (2) the Request for Entry of Default filed on January 3, 2025, and (3) the Minute Order issued on January 5, 2026. The foregoing are records of courts of this state and are proper subjects of judicial notice. The Court accordingly grants the request. B. Validity of the Request for Entry of Default Muhetear asserts that Plaintiff's Request for Entry of Default was procedurally defective because no box was checked corresponding to the relief requested on the CIV-100 form filed by Plaintiff. (Mot., at p. 8.)

Muhetear cites Carslon v. Eassa (1997) 54 Cal.App.4th 684 as supporting the notion that an entry of default is void where all the boxes are not properly checked on the default form. In Carlson, however, the issue before the court was whether a district attorney's failure to obtain consent to a stipulated judgment in an action brought pursuant to the Uniform Reciprocal Enforcement of Support Act voids the judgment. (Carlson, 54 Cal.App.4th, at p. 692.) That determination has no bearing on the entry of default here, and Muhetear offers no other authority to suggest that a technical defect renders the clerk's entry of default void.

The Court therefore does not find the entry of default to be void. C. Relief Under Section 473, Subdivision (b)

(1) Timeliness of Motion A motion under the discretionary relief provision of section 473, subdivision (b) must be made "within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or other proceeding was taken." (Code Civ. Proc., Sec. 473, subd. (b).) The motion must be accompanied by a copy of the proposed responsive pleading. (Ibid.) The six-month limitation is an outer limit of the court's ability to grant relief. (Caldwell v. Methodist Hospital (1994) 24 Cal.App.4th 1521, 1524.)

A court has no authority to grant relief if the application is made outside the six-month period. (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340.) An application is considered to be "made" when it is served and filed. (Code Civ. Proc., Sec. 1005.5 ["A motion ... is deemed to have been made and to be pending before the court for all purposes, upon the due service and filing of the notice of motion."]; Arambula, supra, 128 Cal.App.4th, at p. 341 [finding plaintiff's motion for relief from summary judgment untimely where not served on defendant within the six-month period].)

Muhetear's default was taken on January 3, 2025. A motion for relief would accordingly be timely if filed and served by July 3, 2025. Here, while Muhetear previously filed a motion for relief from default on July 2, 2025, within the six-month period for making an application for relief, that motion was denied because Muhetear had not filed proof of service of the motion on Plaintiff. (Minute Order, Jan. 5, 2026, at p. 2.) There is still no indication that Muhetear "duly served" any motion for relief within the six-month period that expired in July 2025.

The instant Motion includes a concurrently filed proof of service indicating that the Motion was served on April 9, 2026, long after the six-month period expired. The Motion is accordingly not timely made under section 473, subdivision (b). D. Relief Under Section 473.5 (1) Form of Motion A motion to set aside pursuant to Code of Civil Procedure section 473.5 "shall 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 the party's avoidance of service or inexcusable neglect.

The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action." (Sec. 473.5, subd. (b).) Muhetear submits a declaration, signed under penalty of perjury, attesting to her lack of actual notice of the action. Muhetear has also included with the Motion her proposed Answer to the Complaint. (See Muhetear Decl., Exh. C.) The Court finds that Muhetear has complied with the form requirement of Code of Civil Procedure section 473.5.

(2) Timeliness A notice of motion to set aside entry of default based on lack of actual notice must 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." (Code Civ. Proc., Sec. 473.5, subd. (a).) Where no written notice is served, the shorter 180-day period prescribed by Code of Civil Procedure section 473.5 is not triggered. (See Olvera v.

Olvera (1991) 232 Cal.App.3d 32, 39, fn. 8.) A motion is filed within a reasonable time if there is a satisfactory excuse for the default and the defendant shows diligence in filing the motion after discovering the default. (Kendall v. Barker (1988) 197 Cal.App.3d 619, 625.) Here, Muhetear attests that she never received notice that a default had been entered against her. (Muhetear Decl., P. 8.) She states that she did not learn of the action until June 20, 2025, when she conducted a search of both her and her husband's names on the Los Angeles Superior Court Civil Index to see if there were any claims related to her community property. (Id., P. 6.)

Once Muhetear learned of the instant action, she immediately contacted her attorney and began preparing the Motion. (Id., P. 7.) Plaintiff contends that the Motion is untimely because it was not made within 180 days of service of the Request for Entry of Default. (Opp'n, at p. 5.) A Request for Entry of Default, however, is not "written notice that the default ... has been entered." (See Code Civ. Proc., Sec. 473.5, subd. (a).) A Request for Entry of Default necessarily precedes actual entry of default.

For the shorter 180-period to be triggered, notice that the default has actually been entered is required. Given that there is no indication Muhetear was served with notice that the default was entered, the Motion was thus timely if made within a reasonable time no later than two years after entry of default. The Motion was filed on April 9, 2026, well within two years after default was entered. Moreover, immediately after learning of the action, Muhetear contacted her attorney to seek relief. She filed a motion for relief and a purported answer just 12 days after learning of the action and the resulting default.

Although procedurally defective, this quick move to address the default shows diligence in seeking to defend the action. The instant Motion was filed three months after the initial motion for relief was denied. The Court finds this to be reasonable given that Muhetear was concurrently handling matters in her dissolution proceeding. (See RJN, Exhs. 5, 6.) The Court finds that the Motion was timely made. (3) Grounds for Set-Aside (a) Lack of Actual

Notice A registered process server's declaration of service establishes a presumption of valid service. (Evid. Code, Sec. 647; American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390 (Zara).) That presumption may be rebutted by evidence that the defendant was not served. (Zara, at p. 390.) Plaintiff's Proof of Service of the Summons and Complaint is signed by registered process server Randy Buchanan, declaring that personal service on Muhetear was made on November 10, 2024. (Muhetear Decl., Exh.

B.) The declaration creates a rebuttable presumption of valid service, and the burden shifts to Muhetear to produce evidence to rebut it. Muhetear attests, in a declaration signed under penalty of perjury, that she was never personally served with the Summons and Complaint at the time and location noted in the Proof of Service. (Muhetear Decl., P. 2.) Although she admits routinely visiting the location, a court-monitored visitation site where she usually picks up her children once per week, she attests that no process server ever approached her or handed her any documents there. (Id., P. 3; Mot., at p. 4.)

She further states that she did not conceal herself from any process server or try to evade service of process. (Id., P. 4.) Muhetear attests that she only discovered the existence of the pending litigation because she conducted a routine search of the Los Angeles Superior Court Civil Index to investigate claims related to her community property. (Id., P. 6.) Muhetear satisfactorily rebuts the presumption that service of the Summons and Complaint was valid. (b) Failure to Warn Opposing Counsel "[A]n attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary's default. [Citation.]" (LaSalle v.

Vogel (2019) 36 Cal.App.5th 127, 135, italics in original.) This ethical obligation is "now reinforced by a statutory policy that all parties 'cooperate in bringing the action to trial or other disposition.'" (Id., at p. 137.) The failure to inform opposing counsel of an impending default is a factor supporting set-aside. (See id., at p. 138.) Muhetear attests that Plaintiff's attorney, Khachik Akhkashian, knew Muhetear was represented by counsel when this action was initiated because he participated in proceedings connected with her dissolution action. (Muhetear Decl., P. 9.)

She further attests that her attorney was not notified of either this action or the intent to request entry of default against her. (Ibid.) Plaintiff argues that Muhetear fails to supply evidence that her counsel informed Akhkashian that he would represent her in the instant action. (Opp'n, at p. 6.) This Motion, however, is premised on Muhetear's lack of knowledge of the action, and she could not have imparted knowledge to her attorney that she did not possess. It can be presumed that Muhetear's counsel likewise lacked knowledge of the action to allow him to inform Akhkashian of Muhetear's representation status.

The present circumstances are similar to the facts of Bellm

v. Bellia (1993) 150 Cal.App.3d 1036. In Bellm, the defendant was represented in a separate action in which the defendant's and plaintiff's counsel were adversaries. (Bellm, at p. 1038.) The Court of Appeal, while finding no abuse of discretion in denying relief from default, decried the "lack of professional courtesy" of the plaintiff's counsel in failing to provide notice to the defendant's counsel of the impending default. (Ibid.) While failure to warn of an impending default is generally a factor considered under the discretionary relief provision of section 473 (E.g., LaSalle, supra, 36 Cal.App.5th, at. p. 134-136), the Court finds that it supports Plaintiff's assertion here that she lacked actual notice of the action.

Based on the foregoing, the Court finds that Plaintiff lacked actual notice of the action in time to defend and that the lack of notice was not due to her avoidance of service or inexcusable neglect. The Court accordingly GRANTS the Motion. CONCLUSION The Court GRANTS Defendant Nadila Muhetear's Motion to Set Aside Entry of Default. Muhetear is ordered to serve and file her answer within 5 days. Moving party to give notice. | Home -->)" -->