Hassan Mahmoud and Omar Mahmoud v. Brian McMullen, et al.

(Stanley Mosk Courthouse: Dept. 408) August 26, 2026 DEPARTMENT 408 LAW AND MOTION RULINGS

Academy LLC's Motion to Set Aside/Vacate Default is GRANTED. I. BACKGROUND On March 27, 2026, Plaintiffs Hassan Mahmoud and Omar Mahmoud ("Plaintiffs") filed a complaint against Defendants Brian McMullen ("McMullen"), Josh Zwagil ("Zwagil"), Creative Brands LLC ("Creative Brands"), Candace Ross ("Ross"), and Michael Tolento ("Talento", collectively "Defendants"), in addition to Nominal Defendant Icon Academy LLC ("Icon"), alleging causes of action for: 1. Fraudulent Inducement; 2. Concealment; 3.

Breach of Contract (Hassan Mahmoud); 4. Promissory Estoppel 5. Rescission; 6. Breach of Fiduciary Duty (Direct Claim); 7. Breach of Fiduciary Duty (Derivative Claim); 8. Breach of Contract (Omar Mahmoud); 9. Fraud; and 10. Declaratory and Injunctive Relief. On May 12, 2026, pursuant to Plaintiffs' request, default was entered against Creative Brands. On May 28, 2026, pursuant to Plaintiffs' request, default was entered against Icon. On July 7, 2026, Icon filed this Motion to Set Aside/Vacate Default.

On August 13, 2026, Plaintiffs filed an opposition. On August 19, 2026, Icon filed a reply. On August 13, 2026, Plaintiffs filed an Amendment to the Complaint correcting the name "Michael Tolento" to "Michele Talento aka Michael Talento". II. LEGAL STANDARD "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding

taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (Code Civ. Proc., Sec. 473, subd. (b).) "Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or other proceeding was taken." (Ibid.) "'[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court...[Citation.]" (Rappleyea v.

Campbell ¿(1994) 8 Cal. 4th 975, 981-982.)¿ Code of Civil Procedure section 473(b) provides both discretionary and mandatory relief from orders. Discretionary relief is available under the statute as "the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (Code of Civ. Proc. Sec. 473, subd. (b).) Mandatory relief is available when "accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect." (Code of Civ.

Proc. Sec. 473, subd. (b).) "The terms mistake, inadvertence, surprise, and excusable neglect warranting relief under section 473(b) are defined as follows: 'Mistake is not a ground for relief under section 473, subdivision (b), when "the court finds that the 'mistake' is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law...." [Citation.] Further, "[t]he term 'surprise,' as used in section 473, refers to '"some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against."' [Citation.]" Finally, as for inadvertence or neglect, "[t]o warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances.

The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.' [Citation.]" (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229-230.) Code Civil Procedure section 473(d) provides in relevant part that the court " may, on motion of either party after notice to the other party, set aside any void judgment or order. " (Code Civ. Proc., Sec. 473, subd. (d.).) III. DISCUSSION Icon seeks relief pursuant to Code of Civil Procedure section 473(d) to set aside the default entered against it on May 28, 2026, on the grounds that default may not be entered against a nominal defendant. (Motion, at p. 1.)

A default or default judgment may not be obtained against an unwilling plaintiff joined as a nominal defendant, regardless of the nature of the proceedings. (Ferraro v.

Camarlinghi (2008) 161 Cal.App.4th 509, 534-540; Watkins v. Nutting (1941) 17 Cal.2d 490, 498-450.) Plaintiffs filed the instant action on their own behalf and derivatively on behalf of Icon by Plaintiff Hassan Mahmoud. (Complaint, at p. 2, P.P. 16, 30.) Icon is included in the complaint solely based on its capacity as Nominal Defendant for the derivative claims. (Ibid.) Moreover, in opposition, Plaintiffs fail to provide any authority finding that such entry of default is procedurally proper. As such, Plaintiffs request for default and default entered against Icon is void under Section 473(d). The motion is granted. IV. CONCLUSION Nominal Defendant Icon Academy LLC's Motion to Set Aside/Vacate Default is GRANTED. | Home -->)" -->