TENTATIVE RULING

Defendant Gerald Fink’s Motion to Set Aside Default is DENIED.

Clerk to give notice. 

REASONING

Defendant Gerald Fink (“Defendant”) moves the Court for an order setting aside the default entered against him on the ground that he was served with process, but his co-defendant Irani Makimoto-Domino indicated she would take care of the lawsuit and would protect him in the settlement of the matter, and Defendant relied on her to do so and did not hire counsel, but Defendant later learned the matter was settled but he was not included in the settlement. Defendant seeks leave to answer and file a cross-complaint.

The proof of service filed on March 14, 2023, indicates that Defendant was served by personal service with the summons and complaint by a registered California process server, and Defendant does not dispute that he was properly served. Instead, Defendant states that he “did not retain [his] own counsel and trusted [co-defendant Irani Makimoto-Domino] to protect my interests” after Makimoto-Domino advised Defendant that “she had retained an attorney and that the attorney would take care of everything.” (Mot., Fink Decl. ¶¶ 7-8.) Defendant has provided a copy of his proposed answer and proposed cross-complaint. (Mot., Glassman Decl. ¶¶ 4-5, Exs. A, B.)

“One who has been prevented by extrinsic factors from presenting his case to the court may bring an independent action in equity to secure relief from the judgment entered against him.” (Olivera v. Grace (1942) 19 Cal.2d 570, 575.) “A party seeking relief under the court’s equitable powers must satisfy the elements of a ‘stringent three-pronged test’: (1) a satisfactory excuse for not presenting a defense, (2) a meritorious defense, and (3) diligence in seeking to set aside the default.” (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 29.) “Relief on the ground of extrinsic fraud or mistake is not available to a party if that party has been given notice of an action yet fails to appear, without having been prevented from participating in the action.” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 503.)

Put simply, there is no basis to set aside the default here, as the case docket makes clear that Defendant had notice of the action and the proceedings therein but chose not to participate. First, Defendant was served with the summons and complaint on February 27, 2023. He received notice on May 8, 2023, of a Case Management Conference in this action, and on May 17, 2023, Defendant was served by mail with Plaintiff Delphi Investors, LLC (“Plaintiff”)’s Request for Entry of Default. Defendant then received notice of a continued Case Management Conference, and on February 8, 2024, Defendant was served with Plaintiff’s default judgment package. Defendant provides no statements that Makimoto-Domino prevented his participation in this action in some way; rather, Defendant simply relied on her representations that the case would be handled, and, despite having notice of the action, Defendant opted not to participate based on Makimoto-Domino’s representations. This is not a basis for setting aside the default on equitable grounds, as Defendant simply chose not to participate in the hopes that Makimoto-Domino would handle the case for him. This is not the sort of extrinsic fraud which warrants relief from default. Accordingly, Defendant Gerald Fink’s Motion to Set Aside Default is DENIED.