Buckley v. Katina CA2/7

Filed 12/11/20 Buckley v. Katina CA2/7
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

TRISTRAM BUCKLEY, B278362

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC510762)
v.

LENA KATINA,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Holly E. Kendig, Judge. Affirmed.
Tristram Buckley & Associates and Tristram T. Buckley for
Plaintiff and Appellant.
Revolve Law Group, Kimberly A. Wright, Kuznetsky Law
Group, and Michael D. Kuznetsky for Defendant and Respondent.

________________________
 Tristram Buckley, an attorney representing himself, filed a
lawsuit against Lena Katina. After Buckley filed a proof of
service of the summons and complaint on Katina, Buckley took
Katina’s default and obtained an $8 million default judgment
against Katina. When Katina learned of the default judgment,
she moved to set aside the default and default judgment, arguing
that her failure to defend the action resulted from “extrinsic
mistake.”
The trial court granted Katina’s motion, exercising the
court’s equitable power to set aside the default and default
judgment. Buckley argues that the trial court abused its
discretion because the trial court misapplied the law, ignored the
evidence, and disregarded prior court orders. We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
A. Buckley’s Complaint and Default Judgment
Buckley is a music manager. Katina is a recording artist,
who formerly performed in a Russian duo called t.A.T.u. During
the period March 2012 through March 2013, Buckley managed
Katina. Buckley claims that in March 2013 Katina wrongfully
terminated him as her manager. In March 2013 Katina retained
counsel, Mark L. Levinson, to represent her in the dispute with
Buckley and to attempt to negotiate a resolution. Subsequently,
Levinson and Buckley had numerous telephone conversations
and email communications to discuss possible resolution.
On June 4, 2013 Buckley filed a complaint against Katina
and seven other defendants. Buckley alleged that, as Katina’s
manager, he “dramatically improved every aspect of the Katina
project.” Buckley alleged that, after “a year of his working full
time on the Katina project,” he “achieved what everyone said
would be impossible, a reunion of [t.A.T.u].” “Before being

2
wrongfully terminated,” Buckley alleged that he “effectively
altered [Katina’s] career and put her on a track that would result
in the highest possible likelihood for commercial success for the
remainder of her career.” According to Buckley, Katina was “the
most famous recording artist in Russian music history.”
The complaint further alleged that Katina terminated
Buckley’s services “to avoid having to pay him his 20% of revenue
already earned while he was the Manager” and 20% of Katina’s
future revenue. Buckley alleged that Katina and other
defendants “made false and derogatory statements” about him
“reaching hundreds of thousands of people.” Based on these
allegations, Buckley asserted causes of action against Katina for
fraud and fraudulent inducement, breach of contract, quantum
meruit, unjust enrichment, Labor Code violations, and
defamation.
Buckley maintains that on June 30, 2013 Kate Harbuzava,
a designer, personally served Katina with the summons and
complaint. Harbuzava signed a proof of service stating that she
personally served Katina with the summons and complaint at an
address in Los Angeles. According to Buckley, “[a]fter the
lawsuit was filed, Katina left her apartment in Los Angeles [and]
moved back to Russia to focus on starting a family . . . .” After
Katina failed to respond to the complaint, on October 22, 2013
Buckley filed a request for entry of default. The request for entry
of default, dated September 28, 2013 and signed by Buckley,
indicated in the “Declaration of mailing” section that the request
was not mailed to Katina because her address was “unknown.”
Although largely crossed-out and without listing a mailing
address for Katina, the request also indicates September 28, 2013
as the date of mailing. On October 28, 2013 the court clerk

3
rejected the request because of the defective declaration of
mailing. On December 18, 2013 Buckley filed a second request
for entry of default, also dated September 28, 2013 and signed by
Buckley. The request stated that on September 28, 2013 it was
mailed to Katina at an address in Woodside, California. The trial
court entered Katina’s default on December 18, 2013. Following
a default prove-up hearing, the trial court1 entered a default
judgment on October 7, 2015 in favor of Buckley and against
Katina in the amount of $8,175,788.01. Buckley did not notify
Levinson that Buckley was taking Katina’s default or that he was
seeking a default judgment.
B. Katina’s Motion To Set Aside the Default and Default
Judgment
On February 3, 2016 Michael Kuznetsky, counsel for a co-
defendant in the action, after discovering the judgment against
Katina, advised Katina of the default judgment. The next day
Katina retained Kuznetsky to set aside the default judgment.
1. The Moving Papers
On May 13, 2016 Katina filed a motion to set aside the
default and default judgment. Katina argued that the trial court
should exercise its equitable powers to set aside the default and
default judgment because they were entered as a result of
“extrinsic mistake.” Under the extrinsic mistake doctrine, Katina
argued relief should be granted because she had a “meritorious
defense,” a “satisfactory excuse for not presenting a defense,” and
acted diligently to set aside the default and default judgment.

1 Judge Michelle R. Rosenblatt, now retired.

4
 In support of her meritorious defense argument, Katina’s
motion included a special motion to strike the complaint’s
defamation cause of action pursuant to Code of Civil Procedure
section 425.16. In his declaration Kuznetsky stated that he
“believe[d] that [Katina] has excellent substantive defenses to the
allegations in the unverified [c]omplaint,” and he intended to file
on Katina’s behalf a demurrer and motion to strike following the
resolution of the anti-SLAPP motion. Kuznetsky also stated that
Katina had filed a “petition to determine controversy” against
Buckley with the California Labor Commissioner under the
Talent Agencies Act. Katina’s petition alleged that Buckley
“unlawfully acted in the capacity of [Katina’s] talent agency.”
With respect to a satisfactory excuse for not presenting a
defense in her declaration Katina stated, on the day of the
complaint’s service,2 she was at the home of Harbuzava, her
costume designer, “to be fitted for an outfit.” After the fitting,
Harbuzava handed Katina an envelope Harbuzava said was from
Buckley. “Without reviewing the documents inside,” Katina
handed the envelope back to Harbuzava and told Harbuzava that
“any documents from Mr. Buckley should be sent to my lawyer,
[Levinson].” Katina stated that Harbuzava responded, “‘Ok, as
you wish,’” and “took back the envelope.” Katina understood
Harbuzava “to mean that [Harbuzava] would instruct [Buckley]
to send these documents directly to [Levinson].” Katina stated
that she never received a request for entry of default from

2 In her declaration Katina identified the date as October 22,
2013, which was the date Buckley filed the proof of service with
the court. The proof of service stated that service took place on
June 30, 2013.

5
Buckley, and she learned of the default judgment when
Kuznetsky advised her in February 2016.
In his declaration Levinson stated that, “despite having
numerous conversations with me after the date of alleged service
of [Katina],” Buckley “never advised [Levinson] that [Buckley]
filed the Complaint or allegedly served [Katina].” Levinson did
not learn a default judgment had been entered against Katina
until March 2016. Levinson stated that, had he known Katina
“was allegedly in default” or that “a default would be requested
against [Katina],” “he would have immediately found a litigator
to defend her rights.”
Katina argued that she acted diligently after learning of
the default and default judgment. In his declaration Kuznetsky
stated that he sent a letter to Buckley on February 11, 2016
asking Buckley to stipulate to set aside the judgment and to
forward copies of all filed pleadings concerning Katina. After
Buckley failed to respond, Kuznetsky reserved an April 13, 2016
hearing date for a motion to set aside.
Buckley advised Kuznetsky on March 16, 2016 that he
would oppose any effort to set aside the default judgment.
Buckley did not forward the court documents to Kuznetsky,
telling him to obtain them from the court. Buckley stated, “I
believe the judgment . . . something like $7 million, is available
online.” After Kuznetsky advised Buckley that the trial court
had misplaced the entry of default, on March 23, 2016 Buckley
transmitted a copy of the default judgment but not the entry of
default. Kuznetsky again requested the entry of default from
Buckley. Because of the delay in gathering the necessary
documents, Kuznetsky continued the hearing date to June 13,
2016.

6
 2. Buckley’s Opposition
In his opposition Buckley argued that Katina failed to
demonstrate the existence of exceptional circumstances, required
when relief from default judgment is sought beyond Code of Civil
Procedure section 473’s 180-day deadline, because Katina was
“personally served.” In his declaration Buckley stated, “After the
lawsuit was filed and after Katina’s attorney stated he would not
accept service on behalf of Katina, I asked Harbuzava to inform
me the next time she was going to meet with Katina.” In
Harbuzava’s declaration, although she does not state the date
when Katina was in Harbuzava’s home for the fitting, Harbuzava
stated that, as “Katina was leaving” Harbuzava’s home,
“[Harbuzava] handed her the envelope” containing the summons
and complaint. According to Harbuzava, she told Katina, “‘this is
from [Buckley], he asked me to give these to you.’” Harbuzava
told Katina, ‘“it’s the lawsuit court papers.’” Harbuzava stated
that Katina then “took the envelope . . . opened the envelope and
looked at the court papers that were inside the envelope.”
According to Harbuzava, Katina said, “‘I don’t want it. Give it
back to [Buckley]’ and she refused to take the papers and then
she left.”3

3 Although Buckley attached documents to his declaration
purporting to show Katina’s knowledge of the complaint, he did
not mention them in his declaration or otherwise authenticate
the documents. The trial court sustained Katina’s evidentiary
objections to these documents and other documents Buckley
submitted in opposition to the motion to set aside. Buckley does
not adequately contest those rulings. Therefore, Buckley has
forfeited any argument based on these matters. (See People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363 [“[i]f a
party’s briefs do not provide legal argument and citation to

7
 In his declaration Buckley stated, “There were no ‘active
settlement negotiations’ or any other communications between
Buckley and Levinson at this time when Katina was served.”
Buckley stated that setting aside the default judgment against
Katina would cause him to suffer “extreme prejudice” because he
“prosecuted the default with an extensive investment of time and
energy and resources.” Buckley also stated that “in order to
streamline the case,” he had dismissed without prejudice five
other defendants and three causes of action. In his declaration
Buckley did not state that he advised Levinson that he intended
to take Katina’s default or to obtain a default judgment against
her. Buckley also did not deny that he knew that Levinson
represented Katina. Although Buckley argued that Katina and
Kuznetsky “engaged in unethical conduct and committed
perjury,” Buckley did not argue that the doctrine of unclean
hands barred Katina’s claim for relief.
3. Buckley’s Supplemental Opposition
With the hearing on Katina’s motion scheduled for June 13,
2016, on June 6, 2016 Katina filed her reply papers. On June 8,
2016 Buckley made an ex parte application to continue Katina’s
motion to set aside and another motion and to obtain leave to file

authority on each point raised, ‘“the court may treat it as waived,
and pass it without consideration”’”]; In re Marriage of Davila &
Mejia (2018) 29 Cal.App.5th 220, 227 [“‘[i]ssues not supported by
citation to legal authority are subject to forfeiture’”]; Multani v.
Witkin & Neal (2013) 215 Cal.App.4th 1428, 1457 [“‘Mere
suggestions of error without supporting argument or authority
other than general abstract principles do not properly present
grounds for appellate review.’ [Citation.] ‘Hence, conclusory
claims of error will fail’”].)

8
an amended complaint. Buckley’s application asserted that
“[l]eave is required so Plaintiff may properly, adequately and
fully plead all his claims and defenses against the defendants.”
The trial court’s4 minute order from June 8 stated, “The ex parte
application is denied without prejudice as plaintiff has filed a
First Amended Complaint.” The minute order also stated that
Katina’s motion to set aside and the other motion were continued
to June 22, 2016. Katina’s counsel gave notice of the ruling.5
On June 20, 2016 Buckley filed a 19 page “supplemental
brief” in opposition to the motion to set aside. Buckley also filed
his declaration and a nine page Harbuzava declaration with 22
exhibits. On June 20, 2016, Buckley also filed objections to
Katina’s notice of ruling and a request for order to show cause
regarding contempt based on Katina’s “continuous and ongoing
falsification of facts and misstatements of the law . . . .” On June
22, 2016 Buckley filed a response to Katina’s evidentiary
objections, which were filed with her reply papers. Katina
objected to Buckley’s supplemental papers as unauthorized.
Buckley also filed an opposition to Katina’s untimely objection on
August 17, 2016.

4 Judge Josh M. Fredricks (Retired Judge of the L.A. Sup. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.)
5 After Judge Rosenblatt retired and the trial court
reassigned the case to Judge David Soleto, on June 20, 2016
Buckley filed a peremptory challenge against Judge Soleto.
Because of Buckley’s challenge, Judge Soleto vacated the June
22, 2016 hearing, and the trial court reassigned the case to Judge
Holly E. Kendig. Judge Kendig scheduled the hearing for
September 9, 2016.

9
 C. The Trial Court’s Ruling
The trial court heard Buckley’s motion to set aside the
default and default judgment on September 9, 2016. After
sustaining most of Katina’s objections to Buckley’s evidence and
declining to consider Buckley’s supplemental opposition, the trial
court granted the motion to set aside default and default
judgment based on “the equitable doctrine of extrinsic mistake.”
In its order issued on September 9, 2016 the trial court ruled that
Katina had satisfied the “meritorious defense” requirement
because “Katina has shown facts indicating a sufficiently
meritorious claim to entitle her to a fair adversary hearing.” The
trial court noted that Katina would be filing “not just an answer
admitting or denying the allegations in the complaint, but also an
anti-SLAPP motion, a demurrer, and a motion to strike portions
of the complaint.”
Regarding a satisfactory excuse for not presenting a
defense, the trial court stated that the “term extrinsic mistake is
broadly applied when circumstances extrinsic to the litigation
have unfairly cost a party a hearing on the merits.” Relying on
Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523,6 the trial court

6 The trial court stated, “The California Supreme Court
found sufficient evidence of extrinsic mistake in the case of
Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523. In that case,
the president of a corporate defendant instructed his secretary to
forward a summons and complaint to the corporation’s attorney.
. . . Misinterpreting the president’s instructions, the secretary
filed the summons and complaint away and did not forward these
documents to the attorney. . . . Thereafter, a default judgment
was entered against the corporation when it failed to respond to
the action. . . . The Court concluded that this scenario, and

10
found that “Katina was not fully aware of the legal importance of
the encounter” with Harbuzava. The trial court relied on
Katina’s declaration: “Katina declares that the purported service
made upon her was carried out by one Ms. Harbuzava, who was
Katina’s wardrobe designer. . . . According to Katina, at the end
of a fitting on October 22, 2013, Harbuzava handed her a large
envelope that was purportedly from [Buckley]. . . . Given that
Katina had been in earlier settlement negotiations with
[Buckley], Katina requested that Harbuzava have the documents
sent to her then-attorney, Mark L. Levinson. . . . At no point did
Katina read the documents nor was she informed of the contents
of the documents. . . . When Harbuzava stated, ‘OK, as you wish,’
Katina understood that the documents would be sent to her
attorney. . . . If Katina’s account is given credit, this situation
would be similar to that in Benjamin [v. Dalmo Mfg. Co.]
considering that Harbuzava, rather than being a registered
process server, was performing work for Katina at the time.
Harbuzava apparently indicated her acquiescence to Katina’s
request that the documents be forwarded to Levinson, but
thereafter undertook no further action.” The trial court ruled
that Katina presented “a reasonable excuse for why no defense
was presented.”
The trial court found that “another independent excuse
exist[ed]” for Katina not presenting a defense. The trial court
ruled that, because Buckley “had engaged in settlement
negotiations” with Levinson, and “knew that Levinson
represented Katina,” it was “blatantly unethical” for Buckley, an
attorney, not to advise Levinson “that (1) a lawsuit had been

others like it, provided a sufficient explanation for failure to
make a reasonable appearance in defense of an action.”

11
filed, (2) that Katina’s default was being sought, and (3) that a
default judgment was being requested.” The trial court held that
Buckley as an attorney is “held to a higher standard and bound
by the same code of ethics as is every other lawyer in this state.”
Relying on the California Attorney Guidelines of Civility and
Professionalism, the trial court concluded, “Therefore, as a result
of Plaintiff’s dereliction of his ethical responsibility as a licensed
attorney in this state, neither Katina nor her legal representative
were made aware of the default or the default judgment until
well after the fact. This egregious conduct is more than sufficient
to constitute a basis for setting aside the default and default
judgment based on extrinsic mistake.”
Finally, in finding the requirement of diligence satisfied,
the trial court pointed out that “immediately after discovering the
existence of the default judgment, Katina hired counsel and that
her counsel contacted Plaintiff and sought a stipulation to set the
default aside. While this request was rebuffed, this refusal to
stipulate was evidently not communicated until roughly one
month later. From that point, less than two months elapsed
before the present motion was filed.” The trial court therefore
ruled that “Katina acted with reasonable diligence in moving to
have the default and default judgment set aside.” The trial court
found that Buckley “suffered no prejudice as a result of [Katina’s]
speed in seeking to set aside the default and default judgment.”
Buckley timely appealed. After argument, on September 2,
2020 this court issued a nonpublished opinion. (Sept. 2, 2020,
B278362 [nonpub. opn.].) On September 25, 2020, this court
granted Buckley’s petition for rehearing to accommodate
Buckley’s request for additional oral argument.

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 DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in
Setting Aside the Default and Default Judgment
1. Applicable Law and Standards of Review
A trial court has inherent power to vacate a default
judgment on equitable grounds. (Rappleyea v. Campbell (1994) 8
Cal.4th 975, 981 (Rappleyea); Aldrich v. San Fernando Valley
Lumber Co. (1985) 170 Cal.App.3d 725, 737 (Aldrich).) “One
ground for equitable relief is extrinsic mistake‒a term broadly
applied when circumstances extrinsic to the litigation have
unfairly cost a party a hearing on the merits.” (Rappleyea, at
p. 981; Aldrich, at p. 738.) “[E]xtrinsic mistake exists when the
ground of relief is not so much the fraud or other misconduct of
one of the parties as it is the excusable neglect of the defaulting
party to appear and present his claim or defense. If that neglect
results in an unjust judgment, without a fair adversary hearing,
the basis for equitable relief on the ground of extrinsic mistake is
present.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th
36, 47; accord, In re Marriage of Park (1980) 27 Cal.3d 337, 342.)
“To qualify for equitable relief based on extrinsic mistake,
the defendant must demonstrate: (1) ‘a meritorious case’; (2) ‘a
satisfactory excuse for not presenting a defense to the original
action’; and (3) ‘diligence in seeking to set aside the default once
the fraud [or mistake] had been discovered.’” (Mechling v.
Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1246
(Mechling); accord, Rappleyea, supra, 8 Cal.4th at p. 982; In re
Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1071.)
When “a default judgment has been obtained, equitable
relief may be given only in exceptional circumstances.”
(Rappleyea, supra, 8 Cal.4th at p. 981.) We review the order

13
granting Katina’s motion to set aside the default and default
judgment for abuse of discretion. (Ibid.) The law “favor[s] a
hearing on the merits whenever possible, and . . . appellate courts
are much more disposed to affirm an order which compels a trial
on the merits than to allow a default judgment to stand.”
(Aldrich, supra, 170 Cal.App.3d at p. 737.)
“With respect to purely factual findings, we will defer to the
trial court’s assessment of the parties’ credibility, even though
the determination was made on declarations rather than live
testimony.” (In re Marriage of Nurie (2009) 176 Cal.App.4th 478,
492.) “When two or more inferences can reasonably be deduced
from the facts, the reviewing court has no authority to substitute
its decision for that of the trial court. . . . [¶] Even though
contrary findings could have been made, an appellate court
should defer to the factual determinations made by the trial court
when the evidence is in conflict. This is true whether the trial
court’s ruling is based on oral testimony or declarations.”
(Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)
2. Extrinsic Mistake
a. Meritorious case
Buckley argues Katina made an insufficient showing of a
meritorious case. He argues that the trial court improperly relied
solely on Kuznetsky’s declaration that Katina “‘ha[d] excellent
substantive defenses’” to the complaint. However, to establish a
meritorious case, “only a minimal showing is necessary.”
(Mechling, supra, 29 Cal.App.5th at p. 1246.) The court in
Mechling declined to impose a requirement that the moving party
submit a “proposed pleading or a declaration averring there [was]
such a defense.” (Mechling, at p. 1247.) The court held,
“Fireman’s Fund has asserted a meritorious defense by

14
contending a different result may be reached if it defends the
action. Moreover, the trial court was entitled to draw an
inference from the fact that Fireman’s Fund retained counsel,
that counsel will take the next step, if allowed, of filing a
responsive pleading and conducting discovery to challenge
plaintiffs’ proof of damages and causation.” (Ibid.)
Here, Buckley alleged that during the year he managed
Katina, he revived her career. Based on an alleged agreement set
forth in an email exchange, Buckley seeks 20 percent of Katina’s
earnings for the year he managed Katina as well as 20 percent of
her future earnings. He obtained an $8 million default judgment,
with an unchallenged showing of damages and causation. After
the default prove-up hearing, the trial court’s order stated,
“[Buckley] is to calculate total damages as enumerated by the
Court and submit [a] Judgment.”
As in Mechling, “[a] reasonable inference from these facts
[was Buckley’s] damages award would have been impacted had
[Katina] presented a defense and challenged [Buckley’s] proof of
causation and damages.” (29 Cal.App.5th at p. 1247.) Further,
in addition to her counsel’s declaration, Katina presented the
trial court with a proposed special motion to strike Buckley’s
defamation cause of action as well as a declaration from her
counsel that he intended to file a demurrer and a motion to strike
certain allegations.7 (See Rappleyea, supra, 8 Cal.4th at p. 983

7 On August 24, 2016 the trial court granted a co-defendant’s
anti-SLAPP motion, dismissing Buckley’s defamation cause of
action. In granting the motion the trial court ruled, “there is
little question that the conduct giving rise to the defamation
claim falls under the anti-SLAPP statute.” The trial court
further found, “Buckley has failed to provide any admissible

15
[moving party sufficiently showed merit through unverified
answer to an unverified complaint and counsel’s under oath
statement, “‘these Defendants have a very good (and certainly a
justiciable) defense to the Plaintiff’s claim’”]; see In re Marriage of
Park, supra, 27 Cal.3d at p. 346 [“facts suggest that if [moving
party was] properly represented at a new hearing, the judgment
might well differ materially” from the judgment entered].)
The trial court’s ruling was within its discretion.
b. Satisfactory excuse
Buckley argues that Katina did not provide an adequate
excuse for doing “nothing whatsoever regarding the lawsuit she
had actual knowledge of and where she was personally handed
the pleadings.” However, the trial court sustained Katina’s
objections to Buckley’s evidence concerning Katina’s purported
knowledge of the complaint. As stated, Buckley forfeited any
argument based on these matters. (See People v. Bryant, Smith
and Wheeler, supra, 60 Cal.4th at p. 363; In re Marriage of Davila
& Mejia, supra, 29 Cal.App.5th at p. 227.)8

evidence that would tend to show that his claim for defamation
even has minimal merit.”
8 Buckley’s argument that the trial court “had fundamental
misunderstandings of determinative facts and issues of law”
based on its incorrect reference to October 22, 2013 as the date of
service is misguided. The trial court discussed the incorrect
October 22, 2013 date of service in connection with Buckley’s
“unauthenticated” “purported evidence” that “Katina was
necessarily aware of the pending litigation,” including an
“unauthenticated Facebook printout.” As stated, the trial court
sustained Katina’s evidentiary objections to the Facebook
printout (exhibit 5) as well as the other related items (exhibits 2-
4) attached to Buckley’s opposition declaration. As also stated,

16
 In finding that Katina had provided a satisfactory excuse,
the trial court found that “Katina was not fully aware of the legal
importance of the encounter” on June 30, 2013. In making this
finding, the trial court relied on the context of the encounter
between Harbuzava and Katina. Harbuzava, a designer who
made outfits for Katina, handed the envelope to Katina in
Harbuzava’s home at the end of a fitting. The trial court
accepted Katina’s account that she did not open the envelope and
that she handed the envelope back to Harbuzava with
instructions to give the documents to her lawyer, Levinson.
Katina understood that the documents would be sent to
Levinson. We are required to accept the trial court’s findings.
(See Shamblin v. Brattain, supra, 44 Cal.3d at p. 479 [“[t]he trial
court, with declarations and supporting affidavits, was able to
assess credibility and resolve any conflicts in the evidence”];
Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 915 [“The trial
court—who, unlike us, was also able to assess [counsel’s]
credibility in person—could reasonably find his declaration not
credible. We have no basis to disturb this finding on appeal”].)
While Katina’s decision not to accept the documents from
Harbuzava and forward them herself to Levinson can be debated,
Buckley’s status as a lawyer is relevant to the analysis. Thus, in

Buckley forfeited any argument based on the Facebook printout
and the other excluded exhibits regarding Katina’s alleged
knowledge of the complaint because he fails to adequately contest
the trial court’s ruling. The actual date of service, June 30, 2013,
was closer in time to the parties’ “earlier settlement negotiations”
referenced in the trial court’s discussion. Under these
circumstances, if the trial court had mentioned June 30, rather
than October 22, it would have further supported the trial court’s
finding that Katina’s version was credible.

17
finding a reasonable excuse, the trial court also relied on
Buckley’s failure to give notice to Levinson, Katina’s “known”
counsel, that Buckley was taking Katina’s default and seeking a
default judgment against Katina. Buckley argues that he was
not engaged in active settlement negotiations with Levinson.
However, as the trial court pointed out, whether or not
settlement discussions were ongoing, Buckley knew that
Levinson represented Katina in their dispute. At a minimum,
Buckley, as an attorney, had an ethical obligation to notify
Levinson. (See Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th
681, 701 [“[w]e agree, as such warning is at the least an ethical
obligation of counsel”]. Had Buckley notified Levinson, according
to Levinson, he would have found litigation counsel for Katina,
and Buckley would not have obtained a default judgment. The
parties likely would have proceeded to active litigation on the
merits.
Under the circumstances, the trial court did not abuse its
discretion in finding that Katina had a satisfactory excuse for
failing to respond to the complaint.
c. Diligence
“To qualify for equitable relief on the ground of extrinsic
fraud or mistake, the moving party must demonstrate diligence
in seeking to set aside the default once it was discovered.”
(Manson, Iver & York v. Black, supra, 176 Cal.App.4th at p. 49;
accord, Rappleyea, supra, 8 Cal.4th at p. 982; Weitz v. Yankosky
(1966) 63 Cal.2d 849, 857.) The trial court did not abuse its
discretion in finding that Katina acted diligently after she
discovered the default and default judgment. Katina retained
counsel the next day. Her counsel, Kuznetsky, then immediately
contacted Buckley to obtain the relevant documents. After

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delaying for over a month in responding, in March 2016 Buckley
told Kuznetsky that the documents are “available online.”
Kuznetsky sought the documents from the court; however, the
court could not locate the entry of default. After her counsel
obtained the necessary documents, in May 2016 Katina’s counsel
filed the motion to set aside the default and default judgment.
Buckley argues that setting aside the default judgment
“will cause him extreme prejudice due to loss of evidence, loss of
witnesses and faded memories.” Buckley further argues he
“dismissed parties and causes of action so that the Trial Court
would move forward with the severance.” However, Buckley does
not identify any lost evidence or witnesses with faded memories.
Nor does he explain what claims he dismissed or how their
dismissal was connected to Katina’s not responding to the
complaint. (See Aldrich, supra, 170 Cal.App.3d at p. 740
[“[a]lthough it might be said that there is some prejudice
inherent in any protracted delay, appellants’ single declaration in
opposition to respondent’s motion did not set forth substantial
evidence of missing witnesses, evidence destroyed, and the like,
to establish prejudice”].)
Under the circumstances, the trial court acted within its
discretion in concluding that Buckley was not prejudiced.
In sum, the trial court did not abuse its discretion in
granting Katina’s motion for equitable relief and setting aside the
default and default judgment. (Mechling, supra, 29 Cal.App.5th
at p. 1249 [“That a different decision could have been reached is
not sufficient because we cannot substitute our discretion for that
of the trial court. The trial court’s ruling must be beyond the
bounds of reason for us to reverse it”]; see generally Sargon
Enterprises, Inc. v. University of Southern California (2012) 55

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Cal.4th 747, 773 [“‘The scope of discretion always resides in the
particular law being applied, i.e., in the “legal principles
governing the subject of [the] action . . . .” Action that
transgresses the confines of the applicable principles of law is
outside the scope of discretion and we call such action an “abuse”
of discretion. [Citation.] . . . [¶] The legal principles that govern
the subject of discretionary action vary greatly with context.
[Citation.] They are derived from the common law or statutes
under which discretion is conferred’”]; In re Marriage of Rosevear
(1998) 65 Cal.App.4th 673, 682 [“Generally, where a trial court
has discretionary power to decide an issue, an appellate court is
not authorized to substitute its judgment of the proper decision
for that of the trial judge. The trial court’s exercise of discretion
will not be disturbed on appeal in the absence of a clear showing
of abuse, resulting in injury sufficiently grave as to amount to a
manifest miscarriage of justice. [Citations.] . . . The burden is on
the complaining party to establish abuse of discretion”].)
3. Unclean Hands
Buckley argues that Katina “is not entitled to equitable
relief given her unclean hands.” However, because Buckley failed
to raise the doctrine of unclean hands in the trial court, Buckley
forfeited the argument. (Federal Deposit Ins. Corp. v. Dintino
(2008) 167 Cal.App.4th 333, 355 [failure to raise unclean hands
argument in the trial court forfeits the issue on appeal]; see Sea
Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d
412, 417 [issues not raised in trial court cannot be raised for first
time on appeal]; Nellie Gail Ranch Owners Assn. v. McMullin
(2016) 4 Cal.App.5th 982, 997 [same].)
Even if Buckley had not forfeited the unclean hands
argument, the evidence does not support applying it here.

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Buckley contends that Katina and Kuznetsky “falsely
represented the key facts and circumstances underpinning
[Katina’s] motion.” However, as stated, “[e]ven though contrary
findings could have been made,” we defer to the trial court’s
factual determinations “when the evidence is in conflict.”
(Shamblin v. Brattain, supra, 44 Cal.3d at pp. 478-479.) Buckley
has not shown any false representations.
Buckley further argues that Katina “falsely represented to
Judge Kendig that Judge Fredricks had not granted [Buckley]
leave to file the supplemental pleadings and declarations.” As
stated, on June 8, 2016, after the parties had fully briefed
Katina’s motion to set aside, Judge Fredricks granted Buckley’s
ex parte application to continue the hearing on Katina’s motion
from June 13, 2016 to June 22, 2016. However, the trial court
did not grant Buckley leave to file supplemental opposition.9
Consistent with the minute order, the handwritten order that
Buckley drafted and Judge Fredricks signed at the hearing on
the ex parte application did not give Buckley leave to file
supplemental papers. On December 1, 2016, when Judge
Fredricks granted Buckley’s ex parte application, Judge
Fredricks did not have jurisdiction to issue the order stating that

9 Buckley’s ex parte application did not request leave to file a
supplemental opposition to Katina’s motion. Rather, Buckley’s ex
parte application sought “an Order granting leave to file
[Buckley’s] First Amended Complaint, or alternatively for an
Order Shortening time to hear [Buckley’s] Motion for Leave to file
his First Amended Complaint, and to continue the June 10 and
June 13 hearing dates . . . .” Moreover, Buckley’s May 31, 2016
opposition to Katina’s motion to set aside did not mention any
difficulty in responding to the motion.

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the “June 8, 2016 ex parte application seeking leave to file
supplemental briefs was granted at that time” because on
October 31, 2016 Buckley had filed his notice of appeal from
Judge Kendig’s September 9, 2016 order granting Katina’s
motion. (See Code Civ. Proc., § 916, subd. (a).) Further, as
Katina points out, Buckley failed to seek reconsideration of Judge
Kendig’s September 9, 2016 order granting Katina’s motion to set
aside. (See Code Civ. Pro., § 1008, subd. (e) [“[n]o application to
reconsider any order . . . may be considered by any judge or court
unless made according to this section”]; Kinda v. Carpenter
(2016) 247 Cal.App.4th 1268, 1278 [“section 1008 places strict
jurisdictional limits on a litigant’s ability to seek reconsideration
of a prior ruling”].)10 Buckley has failed to show any

10 When Buckley presented Judge Fredricks’s December 1,
2016 order to Judge Kendig on January 6, 2017, Judge Kendig
ruled: “[Buckley,] who filed no opposition to the pending Motion
for Anti-SLAPP Attorneys’ Fees, files and brings to the court on
this date a purported order and minute order in re: ex parte
application of 06/08/16, which, despite the description on its face
of ‘Dept 42,’ [Judge Fredricks’s order] is not an order of this court.
[¶] Instead, it is an order by [Judge Fredricks] sitting by
assignment in a criminal court in Long Beach issued on
December 1, 2016, to whom [Buckley] went seeking an ex parte
ruling in this case on 12/01/16, and who, as of this date and the
date of the purported 12/01/16 order, has no jurisdiction over this
case and no ex parte jurisdiction. ([Judge Fredricks] sat by
assignment in Department 40 for a short time in June 2016,
when this case was pending in Dept. 40, before the case was
transferred to Dept. 42 on 06/22/16. It was transferred to Dept.
42 as a result of [Buckley’s] Peremptory Challenge, after which
matters in Dept. 40 were taken off calendar . . . .) The court has
not considered [Judge Fredricks’s] order.”

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misrepresentation concerning the results of the June 8, 2016 ex
parte hearing.11
Buckley failed to establish that the doctrine of unclean
hands barred Katina from obtaining relief.
DISPOSITION
The trial court’s September 9, 2016 order is affirmed.
Katina shall recover her costs on appeal.

DILLON, J.*

We concur:

PERLUSS, P. J. FEUER, J.

11 The trial court did not abuse its discretion in sustaining
Katina’s objection to Buckley’s “unauthorized” supplemental
opposition papers he filed on June 20 and June 22, 2016, or in
refusing to consider the other documents Buckley filed after May
31, 2016 without permission. (See Bozzi v. Nordstrom, Inc.
(2010) 186 Cal.App.4th 755, 765 [“We review the trial court’s
refusal to consider plaintiff’s ‘surrebuttal’ brief for an abuse of
discretion. A trial court has broad discretion under rule
3.1300(d) of the California Rules of Court to refuse to consider
papers served and filed beyond the deadline without a prior court
order finding good cause for late submission”].)
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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