Judge Katherine Chilton, Case 21STLC03943 2023-03-30 Tentative Ruling

The Motion to Set Aside Default filed by Defendant Noureen Entertainment, Inc. is DENIED.

On May 20, 2021, Plaintiff Joaquin Hernandez (“Plaintiff”) filed a complaint against Defendants Noureen Entertainment, Inc. (“Noureen”) and Seyed Abhari (Abhari”)[1] (collectively “Defendants) alleging a violation of the Unruh Civil Rights Act.

On July 22, 2021, Plaintiff filed a proof of service, showing that Noureen was served on May 28, 2021, by serving Abhari as a person authorized to accept service of process. Service was effected by a registered process server.[2]

On July 22, 2021, based on Plaintiff’s request, default was entered against Defendant Noureen. (7-22-21 Request for Entry of Default.) A copy of the Request for Entry of Default was mailed to Noureen, c/o Abhari. (Id.).

On March 8, 2023, Defendant Noureen filed a Motion to Set Aside Default (“Motion”).

On March 10, 2023, Plaintiff filed an Opposition to the Motion (“Opposition”). No reply has been filed.

Defendant Noureen seeks to set aside default because the default is void on its face. (Code of Civil Procedure § 473(d)). Noureen contends that the Summons upon which the default was entered is “legally null and void for having its having been incomplete in identifying the defendant Noureen.” (Mot. at p.1-2). Noureen’s argument is that the Summons served on Noureen did not indicate the d/b/a for Noureen – namely, the fact that it does business as “Slater’s 50/50” and “Hamilton’s Steakhouse.” In support of its argument, Noureen cites Carol Gilbert, Inc. v. Haller (2009) 179 Cal. App. 4^th 852.

Plaintiff argues that Noureen failed to serve the Motion in compliance with Code of Civil Procedure Section 1005. According to Plaintiff’s calculation, the Motion should have been served no later than March 6, 2023 but it was not served until March 7, 2023 by Fedex Overnight Delivery. (Because Plaintiff has filed an opposition, the Court will overlook this argument.)

Plaintiff further argues that Carol Gilbert, Inc. v. Haller is inapplicable because the Summons in question stated that Noureen’s agent was being served on behalf of “Noureen Entertainment, Inc.” and Noureen had never been named or identified as a Doe defendant.

In Carol Gilbert, Inc. v. Haller, Plaintiff Carol Gilbert, Inc., sought to join defendant Amit Haller in the action as a Doe defendant, but served a summons on him that omitted the statutory notice that he was served by that fictitious name. After default was entered, Haller sought to vacate the default on the basis that the summons actually received by Haller was left blank in the space designated to notify him that he was sued fictitiously as a Doe defendant.

The Court stated that the only way to overcome an objection that service did not strictly comply with statutory requirements is when:

“(1) the record shows partial or colorable compliance with the requirement on which the objection is predicated; (2) the service relied upon by the plaintiff imparted actual notice to the defendant that the suit was pending and that he was bound to defend; and (3) the manner and objective circumstances of service were such as to make it highly likely that it would impart such notice.”

Here, in contrast to the Carol Gilbert, Inc. case, the Summons served on Noureen actually has Noureen’s name on it. Noureen was never a Doe defendant that later was identified. Noureen was properly served with the Summons and there is no requirement that d/b/a’s be included on a summons. Moreover, the service on Noureen’s agent imparted actual notice to Noureen, and the manner and objective circumstances of service were such as to make it impossible for Noureen not to know since Abhari was served as an individual – and answered – as well as being served as Noureen’s agent for service of process.

Given that Defendant has not shown a proper basis for setting aside the default, the Court DENIES Defendant’s Motion to Set Aside Default.

The Motion to Set Aside Default filed by Defendant Noureen Entertainment, Inc. is DENIED.

[1] Abhari’s true name is “Zia Abhari.”

[2] Evidence Code Section 647 provides that a registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration.