2012-00133819-CU-OR

Ali Mohammad vs. Jafar Ahmad Nassar

Nature of Proceeding:    Motion to Set Aside

Filed By:   Durham, Jonathan

Defendant Jafar Ahmad Nassar’s motion to set aside default is granted.

Defendant seeks to set aside the default entered in this quiet title action on February
15, 2013, pursuant to CCP § 473.5(a) on the basis that service of summons did not
result in actual notice in time to defend the action.

Pursuant to CCP § 473.5,  a default may be set aside where service of the summons
did not result in actual notice to in time to appear and defend the action and that the
lack of notice was not created by avoiding service or inexcusable neglect.  (CCP §
473.5(a), (b).)  ” ‘[A]ctual notice’ in section 473.5 ‘means genuine knowledge of the
party litigant . . . .’ [Citation.]”  (Tunis v. Barrow (1986) 184 Cal. App. 3d 1069, 1077.)

Defendant declares that he did not learn of the instant lawsuit until October 30, 2013
when he found a copy of the summons and complaint in a stack of documents at his
business.  (Nassar Decl. ¶ 1.)  He states that his former store manager must have
placed the summons and complaint in the stack without telling him at a time when he
was out of the country.  (Id.)  He declares that he was never aware prior to October 30,
that the former manager was sub-served, that he has never evaded service and that
he contacted a lawyer the day after he found the summons and complaint.  (Id. ¶¶ 2-
4.)

In opposition, Plaintiffs argue that Nassar’s declaration is not credible and take issue
with the fact that his declaration does not state when and for how long he was out of
the country.  They also present declarations from Nassar’s friend and CPA who each
declare they saw him in the Sacramento area at various times.  Plaintiffs argue that
Defendant must have known about the instant lawsuit prior to October 30, 2013 as it is
not credible that he would not have either reviewed business correspondence at his
business or have spoken to his manager.  However, the critical inquiry is whether he
had actual notice in time to defend the action.  (CCP § 473.5(a).)  As seen below, the
Court is satisfied that Defendant has shown he did not have such notice.

Here, while Plaintiffs are correct that Nassar’s declaration does not specifically state
when he was out of the country, the Court finds that the declaration is sufficient to
show that he did not receive actual notice in time to appear and defend the instant
lawsuit.  The Court does not, as Plaintiffs argue, find that the failure to mention specific
dates regarding his absence from the country or attach documentary evidence
corroborating his absence renders the declaration unbelievable.  Indeed, his
declaration shows that his store manager, the individual sub-served with the summons
and complaint, never informed him of such service and that the documents were
placed in a large stack along with other documents.  Defendant did not, as Plaintiff
suggests, state that he was absent from the country at all times or that he never  received business correspondence and never spoke with his on-site manager.

Further, the declarations submitted by Plaintiffs in opposition are not inconsistent with
Nassar’s declaration that his store manager who was sub-served, never informed him
of the instant action in time to defend.  Indeed, Plaintiffs’ counsel’s declaration simply
shows that he spoke with the former store manager at Defendant’s business in August
2012, before the lawsuit was filed in October 2012, and before the summons and
complaint were sub-served on the store manager in December 2012, nothing which
would indicate that Defendant had actual notice of the summons and complaint in time
to defend the action or that his failure to receive such notice was the result of his
evading service or inexcusable neglect.  (Kaiser Decl. ¶¶ 1-3.)  Further, the declaration
from Defendant’s CPA that he met with Defendant in February 2012 and April 2013 for
tax purposes does not require the Court to discredit Defendant’s declaration, again
because the first meeting took place well before the complaint was filed and the
summons and complaint were sub-served, and the second meeting took place after
the default had already been entered.  Nothing in these declarations is inconsistent
with Defendant’s declaration that his store manager never informed him that he was
sub-served with the summons and complaint in December 2012 in time defend the
action before his default was entered in February 2013.  The finding that Defendant did
not have actual notice of the instant lawsuit in time to defend is consistent with the
principle that ” ‘actual knowledge’ has been strictly construed, with the aim of
implementing the policy of liberally granting relief so that cases may be resolved on
their merits. [Citation.]”  (Olvera v. Olvera (1991) 232 Cal. App.3d 32, 39-40.)

In sum, the Court finds Defendant did not have actual notice in time to defend and that
such lack of notice was not the result of evading service or inexcusable neglect.

In addition, Plaintiffs’ argument that the motion should be denied because he cannot
show a meritorious defense, which is essentially an argument regarding the ultimate
merits of the lawsuit is rejected.  Indeed “[w]hile a defendant moving for relief from a
default judgment is required to serve and file a copy of his proposed answer with the
motion (Code Civ. Proc., § 473.5, subd. (b)), the hearing on the motion is not the
occasion to try the merits of the action.”  ( Tunis, supra, 184 Cal.App.3d at 1080.)  “The
court’s inquiry is limited to whether the…pleading contains a statement of facts
sufficient to constitute a meritorious case, and the truth concerning the meritorious
defense is not at issues.”  (Id. [quoting Ludka v. Memory Magnetics International
(1972) 25 Cal.App.3d 316, 323-324]; see also Brockman v. Wagenbach (1957) 152
Cal.App.2d 603, 612 [“showing of meritorious defense may be made by a verified
proposed answer”].)  The proposed verified answer and verified cross-complaint
attached to the motion meet these requirements as Defendant essentially denies
Plaintiffs’ right to the subject property and seeks to quiet title in his name.

As a result, the default entered in this action on February 15, 2013, is set aside.
Defendant shall file and serve his proposed verified answer and cross-complaint no
later than December 23, 2013.