Borton Petrini, LLP v. Arshad

(49) Tentative Ruling

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

Hearing Date: May 28, 2026 (Dept. 502)

Motion: By Defendant Muhammad Arshad to Set Aside Default Judgment

Tentative Ruling:

To deny defendant Muhammad Arshad’s motion to set aside the default judgment, without prejudice. (Code Civ. Proc., § 473, subd. (d).)

Explanation:

Defendant Muhammad Arshad (“Defendant”) moves to set aside the default judgment that was entered against him by plaintiff Borton Petrini, LLP (“Plaintiff”). The basis for the motion to set aside in the moving papers is Code of Civil Procedure section 473, subdivision (d).

Code of Civil Procedure section 473, subdivision (d), states:

The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.

Defendant submits that the entry of clerk’s judgment was void because the clerk’s judgment did not comply with Code of Civil Procedure section 585, subdivision (a). Code of Civil Procedure section 585, subdivision (a), states in pertinent part:

In an action arising upon contract or judgment for the recovery of money or damages only, if the defendant has...been served, other than by publication, and no [responsive pleading] has been filed with the clerk of the court within the time specified in the summons, or within further time as may be allowed, the clerk, upon written application of the plaintiff, and proof of the service of summons, shall enter the default of the defendant...so served, and immediately thereafter enter judgment for the principal amount demanded in the complaint.

This provision has been interpreted in Holloway v. Quetel, (2015) 242 Cal.App.4th 1425, to mean that:

[W]hen the complaint seeks compensatory damages only, in a sum certain that is readily ascertainable from the allegations of the complaint or statement of damages, the clerk may enter the default judgment for that

amount...However, a clerk’s judgment is appropriate only in cases where the determination of damages is a purely ministerial act, that is, where there is “some definite, fixed amount of damages or where such may be ascertained by computation made by the clerk. If evidence must be taken to establish the amount due..., the clerk may not render judgment.” (Holloway v. Quetel, supra, 242 Cal.App.4th at p. 1432, (internal citation omitted).)

Plaintiff filed the Complaint in the present case for breach of contract and for common counts. Attached to the Complaint was a record of the amounts billed by Plaintiff and the amounts paid by Defendant. The recorded amounts are clear and a sum certain. No additional evidence was required or needed to be taken to establish the amount due. Therefore, a clerk’s judgment was permitted and allowed under Code of Civil Procedure section 585, subdivision (a). No void judgment was entered. Therefore, Code of Civil Procedure section 473, subdivision (d), does not apply. Accordingly, the Defendant’s motion to set aside the default judgment pursuant to Code of Civil Procedure section 473, subdivision (d) is denied, without prejudice.1

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 05/27/26. (Judge’s initials) (Date)

1 The court notes that each of Plaintiff’s opposition and Defendant’s reply refer to and argue on

relief based on Code of Civil Procedure section 473, subdivision (b). Code of Civil Procedure section 473, subdivision (b) was not initially raised as a basis for relief. As notice was given to seek relief pursuant to Code of Civil Procedure section 473, subdivision (d), the court does not address the arguments made as to Code of Civil Procedure section 473, subdivision (b).

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