Moises Diaz Perez v. Shiran Messica

Plaintiff opposes the motion, arguing first that the motion is untimely, and that there was no meet and confer nor was a separate statement filed. Plaintiff further argues that Defendants lack standing to assert Jianxin Xu's privacy rights because neither Defendant owns or claims any interest in the subject account. Plaintiff also contends service on Jianxin Xu was proper because CCP section 1985.3 permits service at the consumer's last known address. (Opposition., pp. 6-8.) On the merits, Plaintiff argues the records are directly relevant because this action concerns the tracing of approximately $4.89 million allegedly transferred through accounts controlled by Jianxin Xu and used toward the property purchase, mortgage payments, and rental activity.

Plaintiff contends the requested records are necessary to determine the movement and disposition of those funds and that no less intrusive source exists. Plaintiff nevertheless does not oppose a reasonable protective order limiting the use of the records to this litigation. (Opposition., pp. 10-12.) The Court makes the following findings. Procedurally As a preliminary matter, the Court declines to deny the motion based on untimeliness, the lack of a separate statement, or the failure to meet and confer.

Because the motion was filed before the July 10, 2026, production date, the Court exercises its discretion to consider the motion on the merits. Next, as to standing, CCP Sec. 1987.1(b)(1) expressly identifies a "party" as a person who may move to quash or modify a subpoena. Although the Bank of America records do not belong to Moving Defendants, they are parties directly affected by the subpoena because Plaintiff intends to use the financial records as evidence against them. Thus, Moving Defendants have standing to seek modification of the subpoena.

Merits The Court finds that the requested bank records are directly relevant to Plaintiff's claims. Plaintiff alleges causes of action for conversion, breach of fiduciary duty, accounting, purchase-money resulting trust, constructive trust over traceable proceeds, restitution, and equitable lien, all of which implicate the movement and tracing of the disputed funds. Indeed, Plaintiff alleges that her beneficial interest in the property depends on the proportion of the purchase price paid with her funds and the reduction in mortgage principal from payments made with her funds. (SAC, P. 81.)

Thus, Plaintiff has demonstrated a legitimate need for the relevant transaction records. However, the subpoena as drafted is broader than necessary. It seeks "any and all" records concerning the account from June 1, 2022, to the present, even though the Bank of America account was not opened until January 9, 2024. The subpoena also extends beyond transaction and account records to internal bank comments, notes, emails, alerts, compliance materials, Currency Transaction Reports, and SARs. The Court therefore finds modification appropriate rather than quashing the subpoena in its entirety.

The subpoena shall be limited to records beginning January 9, 2024, to the present and shall exclude SARs and information revealing whether a SAR was prepared or filed. Federal law prohibits disclosure of such information, and California courts recognize and enforce that prohibition. (See Union Bank of California v. Superior Court (2005) 130 Cal.App.4th 378, 392-394.) Finally, because the records contain sensitive financial information and both sides agree that confidentiality protections are appropriate, any production shall be subject to a protective order limiting disclosure and use of the records to this litigation.

Thus, the motion to quash is DENIED, but the alternative request to modify the subpoena is GRANTED as set forth above. IV. CONCLUSION AND ORDER The Court DENIES Defendants' motion to quash the Bank of America subpoena in its entirety. However, the Court GRANTS Defendants' alternative request to modify the subpoena. The Court further DENIES Plaintiff's request for monetary sanctions. Defendants are to give notice. Dated: August 31, 2026 JARED D. MOSES JUDGE OF THE SUPERIOR COURT Case Number: 26NNCV03523 Hearing Date: August 31, 2026 Dept: P [TENTATIVE] ORDER GRANTING MOTION BY DEFENDANT TO SET ASIDE/VACATE DEFAULT

I. INTRODUCTION Plaintiff Moises Diaz Perez ("Plaintiff") filed this action against Defendant Shiran Messica ("Defendant") arising from Defendant's alleged defamatory statements and conduct directed toward Plaintiff. Plaintiff alleges that Defendant falsely accused him of being a pedophile and a danger to children, interfered with his employment and economic relationships, and engaged in stalking and surveillance. The Complaint asserts causes of action for (1) defamation per se, (2) intentional interference with contractual relations, (3) intentional interference with prospective economic relations, (4) civil stalking under Civil Code section 1708.7, and (5) intentional infliction of emotional distress.

On July 7, 2026, the clerk entered Defendant's default. Defendant thereafter filed the instant motion to set aside the default, with renewed motion filed on August 7, 2026. Plaintiff opposes the motion. II. LEGAL STANDARD Courts may set aside a default or default judgment due to lack of actual notice. Code of Civil Procedure Sec. 473.5 states: "(a) 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.

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. (b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect.

The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. (c) Upon a finding by the 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."

Additionally, "[a] summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action. The form of a summons is prescribed by law, and this form must be substantially observed. [Citation.] Service of a substantially defective summons does not confer jurisdiction over a party [citation] and will not support a default judgment. [Citation.]" (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.)¿ "Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.' [Citation.]" (Sakaguchi v.

Sakaguchi (2009) 173 Cal.App.4th 852, 858.) The trial court may set aside any void judgment or order at any time. (Code Civ. Proc., Sec. 473(d).) III. DISCUSSION Code of Civil Procedure section 473.5 allows a court to set aside a default or default judgment where service of summons "has not resulted in actual notice to a party in time to defend the action." (Code Civ. Proc., Sec. 473.5, subd. (a).) A motion under this section must be accompanied by a sworn declaration showing that the lack of notice was not caused by the party's inexcusable neglect or avoidance of service. (Sec. 473.5, subd. (b); Anastos v.

Lee (2004) 118 Cal.App.4th 1314, 1319.) In addition, the moving party must file a proposed responsive pleading. (Sec. 473.5, subd. (c).) Procedural requirements Here, Defendant moves to set aside the clerk's entry of default entered on July 7, 2026, on the ground that she did not receive actual notice of the action in time to defend. Defendant submitted a sworn supplemental declaration stating that she moved from the address where substituted service was attempted effective April 1, 2026, and no longer resided or regularly returned there when service was made. (Messica Supp.

Decl., P.P. 4-5.) Defendant further declares that she did not receive the summons and complaint through the substituted service and first learned that legal papers had been left at her former residence after a neighbor contacted her. (Id., P. 6.) Defendant has also submitted a proposed Answer concurrently with the motion. Thus, Defendant has satisfied

the procedural requirements of section 473.5. Merits The Court finds that Defendant has sufficiently shown that she did not receive actual notice of the action in time to defend. Defendant declares that she moved from the Whitsett Avenue residence effective April 1, 2026, before substituted service was attempted there, and did not receive the summons and complaint through that service. (Messica Supp. Decl., P.P. 4-6.) Although Defendant became aware of the action before entry of default, she promptly went to the Pasadena Courthouse seeking guidance and filed an ex parte application on July 6, 2026.

Plaintiff obtained entry of default the following day. Thus, the record supports a finding that Defendant did not receive actual notice in time to defend and that her lack of notice was not caused by avoidance of service or inexcusable neglect. Thus, Defendant has established grounds for relief under Code of Civil Procedure section 473.5. IV. CONCLUSION AND ORDER The motion to set aside the clerk's entry of default is GRANTED. Further, the Court declines to impose monetary sanction given the lack of actual notice and Defendant's prompt efforts to participate in the action.

Defendant's answer is deemed filed as of the date of this order. Defendant is to give notice. Dated: August 31, 2026 JARED D. MOSES JUDGE OF THE SUPERIOR COURT | Home -->)" -->