| Case | County / Judge | Motion | Ruling | Indexed | Hearing |
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Motion to Set Aside/Vacate Default
Generally, “once a defendant files a motion to quash the burden is on the plaintiff to prove by a preponderance of the evidence the validity of the service and the court’s jurisdiction over the defendant.” (Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991; see also Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 [same].) However, this burden shifts when a properly executed proof of service has been filed. “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.)
On November 19, 2025, after the instant motion was filed, Plaintiff filed a properly executed proof of service showing service of the Summons and Complaint on Defendant Farkhondeh Mirzadeh via personal service. (ROA 39.) Katharyne Davis is a registered California process server. (Id.) Davis declares under penalty of perjury under the laws of the State of California that she personally delivered the Summons and Complaint to Defendant Farkhondeh Mirzadeh. (Id.) Plaintiff’s properly executed proof of service showing service of the Summons and Complaint on Defendant Farkhondeh Mirzadeh creates a rebuttable presumption that service was proper. (Floveyor Int’l, Ltd. v.
Superior Court (1997) 59 Cal.App.4th 789, 795; American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390
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Defendant Farkhondeh Mirzadeh declares that she did not receive two copies of the notice and acknowledgement of receipt and that she did not execute a written acknowledge of receipt of summons and return it to Plaintiff. (Farkhondeh Mirzadeh Decl. ¶¶ 4-5 [ROA 35].) This is insufficient to rebut the presumption of proper personal service of the Summons and Complaint. The motion to quash service of summons and complaint is denied.
Plaintiff to give notice.
54 Johnson vs. Darden Restaurants, Inc.
23-01334261 Motion to Set Aside/Vacate Default
The Motion to Set Aside Default brought by Defendant Christopher Zarate is DENIED as MOOT.
The motion seeks to set aside a default entered against Defendant on December 2, 2025; however, no default is reflected in the record of this action. While the record indicates Plaintiff submitted a document for filing on December 2, 2025, this filing was rejected on December 10, 2025, with the stated reason being: “A motion was filed and set for hearing by the defendant.” (ROA No. 127.)
The referenced motion was a Motion to Quash, which was filed by Defendant on August 21, 2025 (well in advance of the attempted default) and subsequently denied on January 16, 2026. (ROA No. 146.) Following the hearing on the Motion to Quash, Defendant’s Answer was accepted for filing on February 4, 2026. (ROA No. 149.)
The continued presence of this motion on the Court’s calendar reflects multiple failings by Counsel.
More than five months have passed since the Request for Entry of Default was rejected (ROA No. 127.) More than three months have passed, since Defendant’s Answer was accepted for filing. (ROA No. 149.)
While “Defendants engaged in multiple attempts to meet and confer with Plaintiff’s counsel to stipulate to set-aside the entry of default,” all such attempts pre-date rejection of the purported default filing. (¶2 of Baldwin Declaration.) Defense Counsel apparently ceased their efforts to communicate with Plaintiff (or to review the electronic record of this action), after December 4, 2025. Plaintiff’s Counsel, in turn, opted against communicating the rejection of the filing to Defendant.
Consequently, this motion remained on the Court’s already congested calendar, delaying the hearing of another, perhaps meritorious motion.
In light of the above failings, the Court orders Counsel for Plaintiff Ryne Osborne and Counsel for Defendant Zarate, Rudie Baldwin, to read and review the OCBA’s Civility Guidelines, available on the court website at: https://www.occourts.org/forms-filing/rules-court
55 Zinchefsky vs. Zinchefsky
25-01524036 Demurrer to Amended Complaint
The Demurrer brought by Defendant Steven Zinchefsky is SUSTAINED, with leave to amend, as to the First through Fourth Causes of Action. Additionally, Defendant’s Request for Judicial Notice (ROA No. 82) is GRANTED, pursuant to Evidence Code section 452, subdivision (d).
Initially, in demurring to Plaintiff’s claims, Defendant offers multiple facts, without offering citation to either the First Amended Complaint or judicially noticeable matters. (See Demurrer: 4:25-5:17.) Defense Counsel is reminded that demurrers consider only the facts alleged in the complaint and matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Additionally, Counsel is reminded that the Court will not independently search the complaint or judicially noticeable material, to find support for factual statements made within a demurrer: “We are not required to search the record to ascertain whether it contains support for [Defendant’s] contentions.” (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545.)
The portion of the Demurrer which seeks a plea in abatement is OVERRULED: To obtain a statutory plea in abatement absolute identity of the parties, causes of action and remedies is required. (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 788; See also People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 770.)
Here, as Plaintiff’s Probate Petition seeks relief under Probate Code sections 17200, 850 and 859 (See Exhibit 2 of RJN) and, as the instant civil action asserts claims for Financial Elder Abuse, Conversion, Theft, Constructive Trust, Breach of Fiduciary Duty, Negligence, and Aiding and Abetting, no absolute identity is apparent.
While Defendant asserts “judgment in the probate case would preclude a determination of the Amended Complaint in the civil case” (Demurrer: 8:15-18 [ROA No. 84]), this statement is made without any further analysis or citation to authority. At most, this portion of the demurrer offers general citations to “Pet”