Filed 6/15/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

PACIFICA FIRST NATIONAL, 

INC., et al.,

Cross-complainants and 

Respondents,

v.

ARIE ABEKASIS,

Cross-defendant and 

Appellant.

 B298292

 (Los Angeles County

 Super. Ct. No. BC602042)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Michael P. Linfield, Judge. Affirmed.

Robert F. Smith for Cross-defendant and Appellant. 

Abdulaziz, Grossbart & Rudman, Kenneth S. Grossbart 

and Bruce D. Rudman for Cross-complainants and Respondents.

____________________
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Arie Abekasis defaulted on a civil case and appeals the trial 

court’s denial of his motion to set aside the default. We affirm.

Abekasis had a role in construction projects and sued 

Pacifica First National, Inc. and others. We call these related 

entities Pacifica. We do not know the particulars of Abekasis’s 

suit because he excluded his complaint from our record. Leslie 

Richards was Abekasis’s lawyer at the time.

Abekasis’s complaint triggered a cross-complaint from 

Pacifica. The service of Pacifica’s cross-complaint on Abekasis 

created the issue in this appeal. Pacifica included a proof of 

service of process against Abekasis, via service on Abekasis’s 

lawyer Richards. Abekasis did not answer, so Pacifica took 

Abekasis’s default. Abekasis moved to set aside the default about 

six months later, arguing service was improper. The court denied 

this motion. 

When Abekasis filed this motion, he brought in a new 

lawyer named Wilfred J. Killian. Killian’s motion to set aside the 

default had less than four pages of text. There were some 

declarations, but none from Richards. 

Killian’s motion for Abekasis was deficient. The key 

witness about the validity of service on Richards was Richards, 

and Killian elected to leave Richards out of the motion. The 

motion thus lacked evidence to prove the service was bad. 

Indeed, Abekasis’s motion was doubly deficient. Abekasis 

filed his own carefully-worded four-sentence declaration saying 

he was president of another party, Diditan Group, and Diditan 

Group was never served with the cross-complaint. Abekasis did 

not say he personally had never been served. 

At the moment of truth, the two people who would know 

about the vital issue remained mum. 
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Pacifica opposed the motion to set aside the default, 

pointing out these flaws. Abekasis replied with a page and a half 

of text. Thereafter Abekasis filed supplemental declarations. 

The trial court issued its tentative ruling, heard argument, 

and adopted its tentative ruling as its final order. 

There is no transcript of this hearing. When appreciable 

sums are in play, it is mysterious why lawyers on both sides 

think the small cost of court reporting is a good cost to avoid. We 

publish this opinion in part to discourage misplaced thrift. 

The trial court denied Abekasis’s motion on multiple 

grounds, including his failure to prove service on Richards was 

defective. 

The trial court was right to deny the motion to set aside the 

default. Abekasis did not prove the service on Richards was bad. 

Pacifica put a proper proof of service form into evidence. The 

burden on Abekasis then was to prove this apparently-proper 

document was invalid. (Floveyor Internat., Ltd. v. Superior Court

(1997) 59 Cal.App.4th 789, 795.) In this quest, Abekasis failed. 

His motion contained no evidence from him or Richards to rebut 

the form’s weight. 

Abekasis appeals with 12 invalid arguments. 

First, Abekasis claims his own declaration shows he did not 

receive the cross-complaint. This is inaccurate. A

straightforward reading of his declaration is Diditan Group had 

not been served. If Abekasis wanted to say he personally also 

had received no service, a simple declarative sentence was all he 

needed. He skipped that. 

Second, Abekasis claims his attorneys also filed 

declarations saying there was no proper service. This too is 

inaccurate. There was no declaration from Richards with the 
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motion Killian filed. Declarations from other lawyers that they

did not get service were immaterial. Killian eventually filed a 

declaration from Richards, but only after Killian filed his reply to 

Pacifica’s opposition. Even then, Richards did not deny Pacifica 

had served her with the cross-complaint. Abekasis thus offered 

no valid proof the service was bad.

Third, Abekasis raises new arguments on appeal about 

Pacifica’s proof of service. Abekasis now claims the person who 

signed Pacifica’s proof of service checked two boxes instead of one 

and should have filed a declaration in the trial court. Abekasis 

forfeited these points by failing to raise them in the trial court. 

Fourth, Abekasis cites Fasuyi v. Permatex, Inc. (2008) 167 

Cal.App.4th 681, 696, and says it means any doubts about 

whether to grant relief from default must be resolved in his favor. 

But there were no doubts here. 

Fifth, Abekasis cites Rosenthal v. Garner (1983) 142 

Cal.App.3d 891, 895, which held actual notice means genuine 

knowledge and does not contemplate notice imputed to a 

principal from an attorney. This holding is not pertinent here. 

Similarly, Credit Managers Association of Southern California v. 

National Independent Business Alliance (1984) 162 Cal.App.3d 

1166, cited by Abekasis, has no bearing on this case. That case 

involved a plaintiff-assignee who first learned of service of a 

cross-complaint on the assignor and of the resulting default after

default judgment had been entered. (Id. at p. 1173.) But unlike 

that case, there was no surprise here.

Sixth, Abekasis cites Rappleyea v. Campbell (1994) 8 

Cal.4th 975, 983, which held equitable relief was proper when the 

court clerk gave incorrect advice about the size of a filing fee. 
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Abekasis’s motion to set aside the default offered no such 

showing. Rappleyea’s holding has no application here.

Seventh, Abekasis argues courts normally set aside 

defaults when there is little prejudice to the opposing party. 

Pacifica correctly notes this presumes a proper motion in the first 

place. Abekasis does not return to the topic of prejudice in his 

reply brief, which is a concession.

Eighth, Abekasis maintains “[t]he term extrinsic fraud or 

mistake is defined liberally.” Abekasis’s motion to set aside the 

default did not establish extrinsic fraud or mistake, however one 

might define these terms. His motion asserted Pacifica did not 

serve him but failed to prove it. That ended the matter.

Ninth, Abekasis contends his motion asked for equitable 

relief and argues one lawyer took advantage of another here. The 

motion, however, established no grounds for equitable relief. 

Only after the motion was filed and after briefing on the motion 

ended did Abekasis raise a purported agreement between the 

parties to set aside the defaults of Abekasis and others. Abekasis 

forfeited arguments relating to the purported agreement by 

excluding them from his trial court motion. 

Tenth, Abekasis submits the absence of a reporter’s 

transcript is not fatal to his appeal. What is fatal to Abekasis’s 

appeal is the invalidity of his motion. Because he chose not to 

retain a court reporter, the slim text of that motion is what we 

have to go on, and that motion lacked merit.

Eleventh, Abekasis writes “[t]he traditional disfavor of trial 

judges for mandatory relief needs to be corrected.” These pages 

pinpoint no error by the trial court. To the extent Abekasis is 

arguing he was entitled to mandatory relief from default under 

section 473 of the Code of Civil Procedure, this argument is 
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incorrect. Abekasis’s motion referenced only discretionary relief 

under this provision; it does not discuss mandatory relief. 

Abekasis thus never informed the trial court of an intention to 

move for mandatory relief. He cannot now complain such relief 

was not awarded. (See Luri v. Greenwald (2003) 107 Cal.App.4th 

1119, 1121, 1126.)

Twelfth, Abekasis suggests “[t]he size of default 

[judgments] needs to be [reined] in.” “Those of us who have been 

in the legal field for decades have seen the size of default 

judgments rise many times more than the consumer price index.” 

“The entry of gargantuan default judgments has become an 

epidemic.” The record identifies no trial court mistakes and does 

not support these claims. The record includes neither the filings 

proving up the judgment nor a complete copy of the crosscomplaint so that we might know the scope of damages claimed. 

DISPOSITION

We affirm the judgment and order Abekasis to pay the 

respondents’ costs.

WILEY, J.

We concur: 

BIGELOW, P. J. 

GRIMES, J.