Filed 6/29/26 Leyva v. Kharbouch CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

JAYSON LEYVA, B345452

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 21STCV39933)
v.

KARIM KHARBOUCH et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of Los
Angeles County, Lee S. Arian, Judge. Affirmed in part,
dismissed in part.
Wolk & Levine, Sarah R. Wolk and Zachary Levine for
Defendants and Appellants.
Law Office of Marc Katzman, Marc J. Katzman and
Kathryn Sterling for Plaintiff and Respondent.

_________________________
 Jason Leyva provided landscaping services to Karim
Kharbouch, an artist who performs under the name French
Montana, at Kharbouch’s home in Calabasas. Leyva alleged that
one of Kharbouch’s dogs bit Leyva and injured him when Leyva
was working on the property. Leyva sued Kharbouch and got a
default judgment. Kharbouch later moved to set aside the
default judgment pursuant to Code of Civil Procedure section
473, subdivision (b) (section 473(b))1 claiming his failure to
participate in the litigation resulted from excusable neglect. The
trial court denied the motion, finding Kharbouch had not carried
his burden to show such excusable neglect.
Kharbouch now appeals, asking that we reverse. Leyva
counters that Kharbouch’s appeal is frivolous and requests we
issue sanctions that include dismissing the appeal. We deny
Leyva’s request for appellate sanctions and affirm the trial
court’s denial of Kharbouch’s set aside motion. Leyva’s complaint
named a limited liability company (LLC) associated with
Kharbouch, and the LLC has also appealed. We dismiss its
appeal as judgment was not entered against it. Because the LLC
is not aggrieved by the order at issue, it lacks standing to appeal.
FACTUAL AND PROCEDURAL SUMMARY
On appeal, we “ ‘view the evidence in the light most
favorable to the prevailing party, giving it the benefit of every
reasonable inference and resolving all conflicts in its favor.’ ”
(Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th
1156, 1166.) We follow this standard in summarizing the

1 Unspecified statutory references are to the Code of Civil
Procedure.

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pertinent facts. We also disregard factual assertions in the
appellate briefing that lack supporting citations to the record.
(Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361,
1379.)
After Kharbouch purchased the Calabasas property in
2016, it was transferred to the LLC. The LLC owned and
managed the property; Kharbouch was the LLC’s manager.
Kharbouch asserts he listed the property for sale in 2020 and sold
it in 2021.
On October 2021, Leyva sued Kharbouch and the LLC.
Although the record does not contain the complaint, both parties
agree that Leyva was on the property in 2019 providing
landscaping services when he was allegedly bitten by one of
Kharbouch’s dogs and sued to recover for his injuries. After
Leyva unsuccessfully tried on multiple occasions to serve
Kharbouch with the summons and complaint, the court
authorized service by publication in July 2023. In September
2023, Leyva filed proof of publication.
On October 16, 2023, the court entered Kharbouch’s
default. Neither party claims, nor does the appellate record
disclose, that the court entered the LLC’s default.2 Leyva
thereafter requested the court enter a default judgment against
Kharbouch only. It appears the court initially rejected these
requests, which sought monetary amounts significantly greater
than what the court eventually authorized. On October 28, 2024,

2 The case register instead indicates that the court granted
a request by Leyva to dismiss the LLC without prejudice on
April 3, 2023. Neither the dismissal request nor the order are in
the record.

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the court entered judgment in Leyva’s favor against Kharbouch
for $402,644.39 ($400,225 in damages and $2,149.39 in costs).
On February 13, 2025, Kharbouch and the LLC filed a
motion to set aside the entry of default judgment pursuant to
section 473(b). Kharbouch claimed excusable neglect for his
failure to respond to the complaint based on a lack of actual
notice about the lawsuit and on his belief the matter had already
been resolved. Kharbouch acknowledged he knew that Leyva’s
representatives had contacted the property’s listing agent about
Levya’s personal injury claim when the home was for sale, but
asserted he was unaware of the lawsuit, the attempts to serve
him, and the publication notice. Kharbouch did not explain how
he became aware of the default judgment. Kharbouch averred
that Leyva had signed a waiver of liability before working on the
property and described its purported terms. Kharbouch further
declared that he entered into a settlement agreement with Leyva
in August 2020 regarding the dog bite and paid Leyva an
unspecified amount as part of that agreement. Kharbouch did
not provide a copy of the purported waiver or settlement
agreement; he did attach a redacted wire transfer form showing
the transfer of an unknown amount of money from his
management company to Leyva in August 2020.
Leyva opposed the motion. He submitted a declaration
stating that he never signed a waiver of liability. Leyva’s
attorney also submitted a declaration stating that he had asked
Kharbouch’s attorney for a copy of the purported waiver and that
nothing was ever provided. Leyva acknowledged having
settlement discussions with Kharbouch, but said he never agreed
to a settlement and never signed a settlement agreement. Leyva
asserted the settlement agreement provided to his lawyer by

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Kharbouch’s counsel was a forgery: among other things, he was
represented at the time but Leyva’s lawyer is not mentioned in it
and is not a signatory, the signature purporting to be from Leyva
was not his, and he was not in the United States on the date he
purportedly signed the settlement agreement. Leyva attached
proof corroborating his presence in Mexico at the time of his
alleged signature; he did not attach the purported settlement
agreement. Leyva stated the wire transfer he received was
payment for landscaping services owed and not in connection
with any settlement agreement related to his injuries from the
dog bite. Leyva’s attorney declared that he asked questions
about the creation and execution of the purported settlement
agreement, all of which Kharbouch’s attorney refused to answer.
Kharbouch and the LLC filed a reply which focused on the
timeliness of the set aside request. The reply did not include any
additional evidence or seek to rebut Leyva’s assertions about the
purported waiver and settlement agreements, claiming those
issues went to the merits of the lawsuit and were not relevant to
the motion to set aside. The reply also clarified that Kharbouch
and the LLC did not dispute service was proper and contended
only that they were unaware of the lawsuit.
After hearing argument, the court issued a written order
denying the motion to set aside on March 13, 2025. The court
noted that, to the extent Kharbouch was claiming lack of actual
notice, his motion should have been brought under section 473.5
and that Kharbouch failed to provide information on key facts
pertinent to a section 473.5 motion. The court also found
Kharbouch had not carried his burden to show excusable neglect
based on his alleged belief the matter was settled, not least of all

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because he did not provide the court with a copy of the purported
settlement agreement.
Kharbouch and the LLC timely appealed the denial of the
motion to set aside. Because there is no indication judgment was
ever entered against the LLC, it is not aggrieved by the order
being appealed and lacks standing. (§ 902.) We therefore
dismiss its appeal. (Six4Three, LLC v. Facebook, Inc. (2020) 49
Cal.App.5th 109, 118.)
DISCUSSION
A. Leyva’s Request for Sanctions
Leyva requests that we impose terminating as well as
monetary sanctions and not reach the merits of Kharbouch’s
appeal. He bases this request on a video clip not presented to the
trial court, which purportedly shows that Kharbouch perjured
himself when he claimed in his February 2025 declaration
submitted to the trial court to be unaware of Leyva’s lawsuit, as
well as on the insufficiency of the appellate record designated by
Kharbouch.
We decline to consider the new evidence Leyva proffers for
the first time on appeal. According to Leyva, video of a
February 23, 2024 publicity appearance by Kharbouch shows
that Kharbouch told an interviewer that he knew about Leyva’s
lawsuit. This evidence “could have been obtained before the trial
court ruled,”3 which was not until over a year later in March

3 Leyva asserts he was unaware of this video at the time of
the hearing before the trial court, but his counsel’s declaration
indicates that no effort to investigate public statements made by
Kharbouch was made until after the trial court ruled. Once that
investigation was undertaken, counsel found the video in

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2025, and Leyva’s “decision not to present that evidence before
the trial court is not a sufficient ground to justify our reviewing it
here.” (Bombardier Recreational Products, Inc. v. Dow Chemical
Canada ULC (2013) 216 Cal.App.4th 591, 604-605.) As we do not
consider this additional evidence, the record before us with
regard to the veracity of Kharbouch’s declaration is the same as it
was before the trial court. To the extent Leyva thought
Kharbouch’s declaration warranted sanctions because it was
perjurious, his remedy was to make that request to the trial court
and not wait to do so for the first time on appeal. This court
reviews factual determinations by a trial court; we do not make
them in the first instance.
As for Kharbouch’s record designation, although it omitted
important documents (such as Leyva’s opposition to the motion to
set aside) in the circumstances before us those deficiencies do not
warrant monetary sanctions, much less the draconian remedy of
terminating sanctions. We therefore deny Leyva’s motion for
appellate sanctions.
B. The Motion to Set Aside
Under the version of section 473(b) that was in effect at the
time of the challenged proceedings, “The court may, upon any
terms as may be just, relieve a party . . . from a judgment,
dismissal, order, or other proceeding taken against him or her
through his or her mistake, inadvertence, surprise, or excusable
neglect. Application for this relief . . . shall be made within a
reasonable time, in no case exceeding six months, after the

question. Thus, with the exercise of reasonable diligence, the
video could have been presented to the trial court.

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judgment, dismissal, order, or proceeding was taken. . . .”
(Former § 473(b) [eff. through Dec. 31, 2025].)
As the party seeking relief, Kharbouch “bears the burden of
proof in establishing a right to relief.” (Hopkins & Carley v. Gens
(2011) 200 Cal.App.4th 1401, 1410.) “Whether the moving party
has successfully carried this burden is a question entrusted in the
first instance to the discretion of the trial court; its ruling will not
be disturbed in the absence of a demonstrated abuse of that
discretion.” (Ibid.)
1. Alleged Lack of Notice
As the trial court noted, Kharbouch’s claim that he did not
have actual notice of the lawsuit is more properly considered
pursuant to section 473.5 than section 473(b). Although
Kharbouch claims he was unaware of the lawsuit, he does not
dispute service was proper. Section 473.5, subdivision (a)
provides, “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 the party in the
action, the party may serve and file a notice of motion to set aside
the default or default judgment and for leave to defend the
action” within certain time limits.
As the trial court noted, Kharbouch’s motion did not
provide the evidence necessary to support relief under section
473.5 motion. Given that the court granted a request to serve by
publication, there is a reasonable inference that Kharbouch
avoided service by other means. Yet Kharbouch provided no
evidence to indicate that his lack of actual notice “was not caused
by [his] avoidance of service,” as section 473.5 requires. (§ 473.5,
subd. (b).) That omission is fatal to any claim for relief under
section 473.5.

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 Analyzing whether the asserted lack of actual notice
constituted excusable neglect for purposes of section 473(b) leads
to the same result. “Excusable neglect exists when ‘a reasonably
prudent person in similar circumstances might have made the
same error.’ ” (County of San Bernardino v. Mancini (2022) 83
Cal.App.5th 1095, 1103.) Kharbouch failed to supply credible
evidence demonstrating he acted with appropriate prudence, and
the reasonable inferences from the record are to the contrary.
Accordingly, the court did not abuse its discretion in denying the
request to set aside the default judgment based on lack of actual
notice.
2. Alleged Mistaken Belief Regarding Settlement
In rejecting set aside relief under section 473(b) based on
Kharbouch’s allegedly mistaken belief that the dispute had
already settled, the court found Kharbouch had failed to carry his
burden of proof. Kharbouch claimed Leyva executed a waiver of
liability and a settlement agreement, but he did not provide a
copy of either to the court. Leyva supplied information
contradicting Kharbouch, including documents corroborating that
Leyva could not have signed the purported settlement agreement
when Kharbouch claimed. The court could reasonably infer from
these facts that no waiver or settlement agreement in fact
existed, and that Kharbouch was not acting under any belief that
they did.
When a trial court order is based on the moving party’s
failure to carry his burden of proof, as is the case here, we review
for whether that finding was erroneous as a matter of law,
specifically whether the movant’s evidence was uncontradicted
and unimpeached, and of such a character and weight as to leave
no room for the trial court to determine it was insufficient.

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(Vasquez v. SaniSure, Inc. (2024) 101 Cal.App.5th 139, 143-144.)
Kharbouch’s evidence was contradicted and impeached, and not
of the type that compelled a finding in his favor as a matter of
law. We thus perceive no abuse of discretion in the trial court
denying his motion.
Kharbouch claims that the trial court incorrectly
considered the (non)existence of the settlement agreement in
denying his motion because he was required only to show a
potentially meritorious defense to litigate on the merits, and not
an actually meritorious defense. In making this argument,
Kharbouch cites long-superseded case law that required movants
seeking a set aside to show they had a meritorious defense. “[I]n
1981, after decades of criticism, the Legislature abrogated any
such requirement by explicitly declaring, ‘No affidavit or
declaration of merits shall be required of the moving party.’
(§ 473(b); Stats. 1981, ch. 122, § 2, p. 862.)” (Shapiro v. Clark
(2008) 164 Cal.App.4th 1128, 1144.) The trial court followed
current law and properly considered the settlement agreement as
it related to Kharbouch’s claim of excusable neglect, and not for
any improper purpose.

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 DISPOSITION
The LLC’s appeal is dismissed. The order denying the
motion to set aside the default judgment entered against
Kharbouch is affirmed. Levya’s motion for sanctions is denied.
Leyva is awarded his costs on appeal.
NOT TO BE PUBLISHED

WEINGART, J.

We concur:

ROTHSCHILD, P. J.

M. KIM, J.

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