Tentative Ruling: Ruby's Fresh Mexican Food and Tequila Bar vs Juan Pablo Pantoja et al
Case Number
25CV06209
Case Type
Hearing Date / Time
Fri, 03/27/2026 - 10:00
Nature of Proceedings
Motion: Set Aside
Tentative Ruling
The hearing on Diana J. Cibrian’s motion to set aside default is continued to May 1, 2026, at 10:00 a.m., in this department, to allow for proper service. Diana J. Cibrian is ordered to serve the motion on all appearing parties no later than April 1, 2026, along with a copy of this ruling, and file proof of service with the court no later than April 6, 2026. All opposition and reply papers, if any, are to be filed and served per Code.
Background and Analysis:
This action commenced on October 1, 2025, by the filing of the complaint by plaintiff Ruby’s Fresh Mexican Food and Tequila Bar, LLC (plaintiff) against defendants Juan Pablo Pantoja (Pantoja), Ezequiel Rodriguez (Rodriguez), and Diana J. Cibrian dba Casa Azteca Insurance Agency (Cibrian) (collectively “defendants”) for: (1) Intentional Misrepresentation; (2) Negligence; (3) Concealment/Fraudulent Non-Disclosure; (4) Breach of Fiduciary Duty; (5) Unfair Business Practices; (6) Conversion; and (7) Declaratory Relief/Indemnity.
As alleged in the complaint:
Cibrian is a licensed insurance agent and, at all relevant times, employed Pantoja and Rodriguez. (Compl., Parties and Venue ¶¶ 4, 5.)
In December 2018, plaintiff retained Cibrian, along with Pantoja and Rodriguez, to perform payroll and tax processing services for plaintiff’s business. (Compl., ¶ 1.) Defendants represented that they were experienced, competent, and qualified to handle all payroll and tax compliance matters on plaintiff’s behalf. (Ibid.) From 2019 through mid-2022, defendants provided these services for plaintiff and plaintiff reasonably relied on defendants’ representations and entrusted them with confidential business and employee payroll information. (Id. at ¶ 2.)
During the course of the engagement, plaintiff discovered multiple minor errors committed by defendants and, as a result, in August 2022, plaintiff terminated the business relationship with Cibrian. (Compl., ¶ 3.)
In March 2023, plaintiff’s new payroll provider, J.J. Oakmont Inc., discovered that defendants had failed to properly report and process payroll for the tax periods 2019, 2020, and 2021, and had failed to file required IRS Forms 941 and 940 for tax years 2019 through 2022. (Compl., ¶ 4.) The omissions were never disclosed by defendants. (Ibid.)
On August 5, 2025, the IRS issued its assessment of penalties and interest for failure to file, totaling $96,470.00. (Compl., ¶ 5 & Exh. A.)
Between 2019 and early 2023, Rodriguez and Pantoja, acting as plaintiff’s payroll and tax compliance agents, repeatedly represented that all payroll tax processing services had been satisfied. (Compl., ¶ 6.) In truth, defendants never filed the required payroll tax returns, nor paid the required payroll tax obligations, and they did not disclose these failures to plaintiff. (Ibid.)
After discovering defendants’ omissions in March 2023, plaintiff contacted defendants on multiple occasions and requested all historical documentation, but defendants either failed to respond or provided vague explanations and excuses for not producing the requested records. (Compl., ¶ 7.) This refusal prevented plaintiff from correcting the filings. (Id. at ¶ 8.)
According to a proof of service of summons filed with the court, Cibrian was personally served with the summons, complaint, and other required documents on October 13, 2025.
On December 16, 2025, plaintiff filed a request for entry of default against Cibrian and Rodriquez. The default was entered as requested on that date. A copy of the request for entry of default was mailed to both Cibrian and Rodriguez the same day.
On December 19, 2025, Cibrian filed the present motion titled: “Motion to Set Aside Judgment.” However, and as noted in the Notice, it is in fact a Motion to Set Aside Default, and will be treated as such.
The motion does not have an attached proof of service, nor has Cibrian filed a separate proof of service, showing that plaintiff and Pantoja have been served with the motion.
“(a) Written notice shall be given, as prescribed in subdivisions (b) and (c), for the following motions: . . .
“(10) Motion to Set Aside Default or Default Judgment . . .
“(b) Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court. However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California, 10 calendar days if either the place of mailing or the place of address is outside the State of California but within the United States, 12 calendar days if the place of address is the Secretary of State’s address confidentiality program (Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1 of the Government Code), and 20 calendar days if either the place of mailing or the place of address is outside the United States, and if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 16-day period of notice before the hearing shall be increased by two calendar days. Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section. All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.
The court, or a judge thereof, may prescribe a shorter time.
“(c) Notwithstanding any other provision of this section, all papers opposing a motion and all reply papers shall be served by personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers or reply papers, as applicable, are filed. This subdivision applies to the service of opposition and reply papers regarding motions for summary judgment or summary adjudication, in addition to the motions listed in subdivision (a).
The court, or a judge thereof, may prescribe a shorter time.” (Code Civ. Proc., § 1005.)
“Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based. If any such paper has not previously been served upon the party to be notified and was not filed by him, a copy of such paper must accompany the notice. Notices and other papers may be served upon the party or attorney in the manner prescribed in this chapter, when not otherwise provided by this code. No bill of exceptions, notice of appeal, or other notice or paper, other than amendments to the pleadings, or an amended pleading, need be served upon any party whose default has been duly entered or who has not appeared in the action or proceeding.” (Code Civ. Proc., § 1010.)
As the court has nothing before it that shows proper service, the court will continue the hearing on the motion and order Cibrian to effectuate proper service and file proof with the court.