TENTATIVE RULING

Defendants Vishal Vanjani and Kavita Vanjani’s Motion to Vacate a Default Pursuant to Code of Civil Procedure section 473(b) is DENIED.

Clerk to give notice. 

REASONING

Defendants Vishal Vanjani and Kavita Vanjani (“Defendants”) move the Court for an order setting aside the default entered against them on the ground that they believed their communications with Plaintiff Siemak LLC (“Plaintiff”) regarding a settlement proposal was in furtherance of a resolution of this action, and they were surprised by the entry of default.

The proofs of service filed on March 22, 2024, indicate that Defendants were each served by personal service with the summons and complaint by a registered California process server, and Defendants do not dispute that they were properly served. While Defendant Vishal Vanjani has provided a declaration of communication with the motion (Vanjani Decl. ¶ 2, Ex. A), the communication is with the third party who assigned the promissory note to Plaintiff, not with a representative of Plaintiff, the communication shows no attempt at settlement, and it would appear that Defendants were fully aware of this action. Thus, the only basis for setting aside the default would be on equitable grounds. 

“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 motion and case docket make clear that Defendants had notice of the action and the proceedings but chose not to participate. First, Defendants were served with the summons and complaint on February 14, 2024. They received notice of the request for entry of default on March 22, 2024, with service of the default prove-up documents occurring on April 19, 2024, and service of the documents relating to the ex parte application to set a hearing on Plaintiff’s request for entry of default judgment on May 9, 2024. Despite being served in February, Defendants waited until May to file the present motion to set aside the default. Defendants provide no statements that Plaintiff or the third party prevented their participation in this action in some way; rather, Defendants simply opted not to participate based on their subjective belief that communication with the third party relieved them of a duty to respond to this action. This is not a basis for setting aside the default on equitable grounds. Accordingly, Defendants Vishal Vanjani and Kavita Vanjani’s Motion to Vacate a Default Pursuant to Code of Civil Procedure section 473(b) is DENIED.