Judge: Peter A. Hernandez, Case: 24STCV10313, Date: 2025-04-03 Tentative Ruling
Case Number: 24STCV10313 Hearing Date: April 3, 2025 Dept: 34
Defendant Dr. Moosa Heikali M.D.’s Motion to Set Aside/Vacate Entry of Default is GRANTED.
Background
On April 24, 2024, Plaintiff Melissa Serna (“Plaintiff”)
filed a complaint against Defendants Dr. Massoud Siahkalroudi Amini, M.D. and
Dr. Moosa Heikali, M.D. (“Defendant”) arising from Plaintiff’s employment with
Defendants alleging a cause of action for sexual harassment.
On August 29, 2024, at the request of Plaintiff, the
court entered default against Defendant Dr. Moosa Heikali, M.D.
On November 22, 2024, at the request of Plaintiff, the
court entered default against Defendant Dr. Massoud Siahkalroudi Amini, M.D.
On March 10, 2025, Defendant Dr. Moosa Heikali, M.D.
filed this Motion to Set Aside/Vacate Entry of Default. No opposition or other
responsive pleading has been filed.
Legal Standard
California Code of Civil
Procedure section 473 subsection (b) provides that “notwithstanding any other
requirements of this section, a court shall, whenever an application for relief
is made no more than six months after entry of judgment, is in proper form, and
is accompanied by an attorney’s sworn affidavit attesting to his or her
mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default
entered by the clerk against his or her client, and which will result in entry
of a default judgment, or (2) resulting default judgment or dismissal entered
against his or her client, unless the court finds that the default or dismissal
was not in fact caused by the attorney's mistake, inadvertence, surprise, or
neglect.” (Code Civ. Proc., § 473 (b).)
With respect to defective
notice of default, the California Code of Civil Procedures states that “when
service of a summons has not resulted in actual notice to a party in time to
defend the action and a default or default judgment has been entered against
him or her in the action, he or she may serve and file a notice of motion to
set aside the default or default judgment and for leave to defend the action.”
(Code Civ. Proc. § 473.5 (a).) “The notice of motion shall 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 him or her; or (ii) 180
days after service on him or her of a written notice that the default or
default judgment has been entered.” (Code Civ. Proc. § 473.5 (a).)
Further, “upon a finding
by a court that the motion was made within the period permitted by subdivision
(a) and that his or her lack of actual notice in time to defend the action was
not caused by his or her avoidance of service or inexcusable neglect, it may
set aside the default or default judgment on whatever terms as may be just and
allow the party to defend the action.” (Code Civ. Proc. §
473.5(b).)
Discussion
Defendant Dr. Moosa Heikali, M.D. (“Heikali”) moves the court for relief pursuant to Code of Civil
Procedure section 473.5. (Motion, at p. 5.) Specifically, Heikali moves the
court to set aside the default entered against him on August 29, 2024. (Ibid.)
As an initial matter,
Heikali does not clarify when he learned of the default. Moreover, Heikali
filed this instant motion 193 days after default was entered making the motion untimely
pursuant to section 473.5(a). Nevertheless, the court will assume that the
motion is timely as no opposition has been filed and there is no proof of
service of the default entered against him on record.
In support of Plaintiff’s
Request for Entry of Default against Heikali, Plaintiff provided a Declaration
of Diligence showing three attempts of service on May 31, 2024, June 3, 2024,
and June 4, 2024, at 17779 Ventura Blvd., Encino, CA 91316. (Declaration of
Diligence, dated June 24, 2024.) Subsequently, Plaintiff provides Proof of
Service of the summons and complaint to Heikali by substituted service on June
4, 2024, at 2:11 PM through Andrew Alverez, alleged to oversee the office
located at 17779 Ventura Blvd., Encino, CA 91316. (Proof of Service, dated June
24, 2024.)
Heikali declares that he
did not receive actual notice of the complaint in time to defend the action and
that such lack of notice was not caused by his avoidance of service or
inexcusable neglect. (Heikali Decl., ¶ 2.) Heikali explains that the structure
of 17779 Ventura Blvd., Encino, CA 91316 is occupied by multiple and distinct
businesses. (Id., ¶ 5.) Heikali provided services for F&M Radiology
Medical Center located at 17779 Ventura Blvd., #100, Encino, CA 91316 where, at
the time of the alleged service, only one male was employed who is not
identified as Andrew Alverez. (Id., ¶ 6.) As such, Heikali declares that
he did not receive any mail related to this action at the F&M location including
the alleged substituted service nor following the entry of default against him.
(Id., ¶ 8.)
“[I]t is the policy of
the law to bring about a trial on the merits whenever possible, so that any
doubts which may exist should be resolved in favor of the application, to the
end of securing to a litigant his day in court and a trial upon the merits.”¿(Frank
E. Beckett Co. v. Bobbitt (1960) 180 Cal.App.2d Supp. 921, 928.) “Even in a
case where the showing under section 473 is not strong, or where there is any
doubt as to setting aside of a default, such doubt should be resolved in
favor of the application.”¿ (Ibid., quoting Van Dyke v. MacMillan
(1958) 162 Cal.App.2d 594, 598, italics in Bobbitt.)¿¿
As no opposition has been
filed against Heikali’s motion, the court notes that there is evidence against
Plaintiff’s proof of substituted service on Heikali showing that the process
server did not serve a copy of the summons and complaint at Heikali’s usual
place of business or with an authorized agent. Heikali declares that the process
server left the complaint at an unrelated business and with a person who is not
employed by F&M. Thus, the court finds Heikali’s lack of actual notice was
not caused by his avoidance of service or inexcusable neglect. Heikali
also attaches a copy of their proposed answer. (Kamandi Decl., Exh. D.)
Accordingly, the court grants
Heikali’s motion.
Conclusion
Defendant Dr. Moosa Heikali M.D.’s Motion to Set Aside/Vacate Entry of Default is GRANTED.