ORDER ADOPTING REPORT AND RECOMMENDATION AND MAKING FURTHER FINDINGS REGARDING LATER-SERVED DEFENDANTS

PHYLLIS J. HAMILTON, District Judge.

The court has reviewed Magistrate Judge Corley's Report and Recommendation ("the Report") re: motion for default judgment against defendants Ronald Witt, Anthony Saliba, and Dublin Rarities ("Dublin"). No objections were filed within the time period provided by 28 U.S.C. § 636(b). The court finds the Report correct, well-reasoned, and thorough, and adopts it in every respect.1 Accordingly, plaintiff's motion for default judgment is GRANTED as to defendants Witt, Saliba, and Dublin on plaintiff's claims for intentional and negligent misrepresentation, breach of contract, conversion, and unfair business practices. Default judgment is DENIED on plaintiff's claims for RICO violations, constructive trust, money had and received, and unjust enrichment. The court further enters judgment against defendants Witt, Saliba, and Dublin in the amount of $598,158.70, plus plaintiff's costs of suit.

After the Report was issued, plaintiff filed a motion to add defendants Robert DiNardo ("DiNardo") and Centurion Collectibles, Inc. ("Centurion") to the default judgment. DiNardo and Centurion were not part of plaintiff's original motion for default judgment, because at the time of the motion's filing, service by publication was still being effected on them. Default has since been entered against DiNardo and Centurion, and plaintiff now seeks to add them to the default judgment.

Plaintiff first argues that Centurion and Dublin were merged in November 2012, "making them effectively the same company" and making the addition of Centurion to the judgment purely "ministerial." The court notes that, as early as the original complaint, plaintiff pled that "Centurion merged into Dublin on or about November 2012." Dkt. 1, ¶ 30. Plaintiff made identical allegations in his motion for default judgment, and those allegations were adopted in the Report. See Dkt. 59 at 12; Dkt. 71 at 5. Despite having multiple opportunities to do so, defendants never challenged these allegations regarding the relationship between Centurion and Dublin. Thus, the court finds that Centurion and Dublin are properly treated as the same entity for purposes of this default judgment.

Next, plaintiff argues that DiNardo is the alter ego of both Dublin and Centurion, and thus, should be added to the judgment. Under the alter ego doctrine, when the corporate form is used to perpetrate a fraud or accomplish some other wrongful or inequitable purpose, the courts will ignore the corporate entity and deem the corporation's acts to be those of the persons actually controlling the corporation. Sonora Diamond Corp. v. Superior Court, 83 Cal.App.4th 523, 538 (2000). Two conditions must be met in order to apply the alter ego doctrine: (1) that there is such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist, and (2) that failure to disregard their separate identities would result in fraud or injustice. Bauman v. Daimler Chrysler Corp., 644 F.3d 909, 920 (9th Cir. 2011) (citing Doe v. Unocal Corp., 248 F.3d 915 (9th Cir. 2001)). On the "unity of interest" prong, plaintiff first notes that it is sufficient to allege dominion or control of the entity by the individual, and identical equitable ownership of the entity. See Daewoo Electronics America Inc. v. Opta Corp., 2013 WL 3877596 (N.D. Cal. July 25, 2013). Plaintiff then argues that DiNardo "exercised dominion and control over Dublin" such that he, along with Witt and Saliba, "collectively controlled and operated" and "were the majority interest or controlling shareholders" of Dublin.

On the "fraud or injustice" prong (also referred to as the "bad faith" prong), plaintiff points to the allegations of the complaint, which alleges a pattern of fraud by DiNardo, both before and after the Dublin-Centurion merger.

Overall, the court finds that DiNardo is indeed properly treated as the alter ego of both Dublin and Centurion. However, in order to add DiNardo to the judgment, plaintiff need not only show that DiNardo is an alter ego of Dublin/Centurion, but must also show that DiNardo had the opportunity to litigate, in order to satisfy due process concerns. See Toho-Towa Co., Ltd. v. Morgan Creek Productions, Inc., 217 Cal.App.4th 1096, 1106 (2013).

Plaintiff argues that DiNardo has had ample opportunity to control the litigation, given that his company (Dublin) and business partners (Witt and Saliba) were personally served with the complaint. Plaintiff argues that the decision not to litigate was a willful, tactical choice on DiNardo's alter ego's behalf.

The court agrees, and notes that DiNardo could have challenged the complaint's allegations either when service was effected, or when the default judgment motion was filed, or when the Report issued, but opted not to do so at any of those times. Thus, the court finds that any due process concerns have been satisfied with respect to DiNardo.

As mentioned above, the court has adopted the Report in every respect, including its evaluation of the merits of plaintiff's asserted claims. Given the finding that plaintiff's intentional misrepresentation claim against Dublin has merit, combined with the court's finding that DiNardo is the alter ego of Dublin, and the finding that Dublin and Centurion are properly treated as the same entity, the court finds that default judgment can be entered against DiNardo and Centurion on the intentional misrepresentation claim. Because the intentional misrepresentation claim, by itself, is sufficient to warrant imposing the full amount of the judgment, the court need not reach the merits of any other claims against DiNardo and Centurion. Thus, the court hereby enters default judgment against DiNardo and Centurion, along with Witt, Saliba, and Dublin, in the amount of $598,158.70.

IT IS SO ORDERED.