CMC; Motion: Set Aside
Case Number
Case Type Civil Law & Motion Hearing Date / Time Fri, 05/01/2026 - 10:00 Nature of Proceedings
CMC; Motion: Set Aside Tentative Ruling As Diana J. Cibrian did not effectuate service, as ordered on March 27, 2026, the hearing on Diana J. Cibrian's motion to set aside default is taken off-calendar.
Background and Analysis: This action commenced on October 1, 2025, by the filing of the complaint by plaintiff Ruby's Fresh Mexican Food and Tequila Bar, LLC (plaintiff) against defendants Juan Pablo Pantoja (Pantoja), Ezequiel Rodriguez (Rodriguez), and Diana J. Cibrian dba Casa Azteca Insurance Agency (Cibrian) (collectively "defendants") for: (1) Intentional Misrepresentation; (2) Negligence; (3) Concealment/Fraudulent Non-Disclosure; (4) Breach of Fiduciary Duty; (5) Unfair Business Practices; (6) Conversion; and (7) Declaratory Relief/Indemnity.
As alleged in the complaint: Cibrian is a licensed insurance agent and, at all relevant times, employed Pantoja and Rodriguez. (Compl., Parties and Venue P.P. 4, 5.)
In December 2018, plaintiff retained Cibrian, along with Pantoja and Rodriguez, to perform payroll and tax processing services for plaintiff's business. (Compl., P. 1.) Defendants represented that they were experienced, competent, and qualified to handle all payroll and tax compliance matters on plaintiff's behalf. (Ibid.)
From 2019 through mid-2022, defendants provided these services for plaintiff and plaintiff reasonably relied on defendants' representations and entrusted them with confidential business and employee payroll information. (Id. at P. 2.)
During the course of the engagement, plaintiff discovered multiple minor errors committed by defendants and, as a result, in August 2022, plaintiff terminated the business relationship with Cibrian. (Compl., P. 3.)
In March 2023, plaintiff's new payroll provider, J.J. Oakmont Inc., discovered that defendants had failed to properly report and process payroll for the tax periods 2019, 2020, and 2021, and had failed to file required IRS Forms 941 and 940 for tax years 2019 through 2022. (Compl., P. 4.) The omissions were never disclosed by defendants. (Ibid.)
On August 5, 2025, the IRS issued its assessment of penalties and interest for failure to file, totaling $96,470.00. (Compl., P. 5 & Exh. A.)
Between 2019 and early 2023, Rodriguez and Pantoja, acting as plaintiff's payroll and tax compliance agents, repeatedly represented that all payroll tax processing services had been satisfied. (Compl., P. 6.) In truth, defendants never filed the required payroll tax returns, nor paid the required payroll tax obligations, and they did not disclose these failures to plaintiff. (Ibid.)
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After discovering defendants' omissions in March 2023, plaintiff contacted defendants on multiple occasions and requested all historical documentation, but defendants either failed to respond or provided vague explanations and excuses for not producing the requested records. (Compl., P. 7.) This refusal prevented plaintiff from correcting the filings. (Id. at P. 8.)
According to a proof of service of summons filed with the court, Cibrian was personally served with the summons, complaint, and other required documents on October 13, 2025.
On December 16, 2025, plaintiff filed a request for entry of default against Cibrian and Rodriquez. The default was entered as requested on that date. A copy of the request for entry of default was mailed to both Cibrian and Rodriguez the same day.
On December 19, 2025, Cibrian filed the present motion titled: "Motion to Set Aside Judgment." However, and as noted in the Notice, it is in fact a Motion to Set Aside Default and will be treated as such. The motion does not have an attached proof of service, nor has Cibrian filed a separate proof of service, showing that plaintiff and Pantoja have been served with the motion.
On March 27, 2026, the court noted: "As the court has nothing before it that shows proper service, the court will continue the hearing on the motion and order Cibrian to effectuate proper service and file proof with the court." (March 27, 2026 Minute Order.)
Cibrian was ordered to serve the motion on all appearing parties no later than April 1, 2026, along with a copy of the ruling, and file proof of service with the court no later than April 6, 2026. She did not do so.
Because Cibrian did not file proof of service with the court, as ordered, the motion will be taken off-calendar.
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