Judge: Christian R. Gullon, Case: 20PSCV00186, Date: 2023-10-18 Tentative Ruling

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Case Number: 20PSCV00186    Hearing Date: October 18, 2023    Dept: O

Tentative Ruling

Plaintiffs’ APPLICATION FOR DEFAULT JUDGMENT is DENIED because default against Defendants was improperly entered. Plaintiffs are to re-serve Defendants with service of summons and complaint.

Background

This case pertains to an unpaid judgment. Plaintiffs JINGLANG SUN and LINJIA QIU (collectively, “Plaintiffs”) allege the following against Defendants ZHI ANG CHEN aka MICHAEL CHEN, individual (“Defendant Chen”); IRENE CHEN, an individual; WINNIE CHEN, an individual; CHIH WEI LEE (“Trustee”), individually and trustee of the CHIH WEI LEE RETIREMENT TRUST dated January 01, 2009; and Doe Defendants: Plaintiffs are the judgment creditors in Jinglang San, et al. v. Zhi Ang Chen, LASC Case Number 18PSCV00009 (the Underlying Action) filed October 26, 2018 against defendant Chen to collect an unrepaid loan. Judgment in the Underlying Action was entered on January 28, 2020 against Chen in the amount of $153,348.47. However, after demanding repayment of the loan, Defendant Chen transferred his assets (including real property) to his daughters, Irene and Winnie Chen, who then transferred the real property to the Trustee.

On March 6, 2020, Plaintiffs filed suit.

On March 16, 2020, Plaintiffs filed a first amended complaint for:

On May 8, 2020, Plaintiffs filed proof of substituted service (POS) as to each four Defendant.

On August 3, 2020, Plaintiffs filed a Notice of Settlement.

From September 17, 2020 to September 28, 2021, a few OSCs re dismissal were filed.

On September 28, 2021, the court issued the following minute order: Plaintiff's counsel indicates payments pursuant to the settlement are still ongoing. Pursuant to the request of plaintiff, the Order to Show Cause Re: Dismissal (Settlement) Pursuant to CCP Section 664.6 scheduled for 09/28/2021 is continued to 03/02/2022 at 08:30 AM in Department R at Pomona Courthouse South.

On December 20, 2021, the court clerk entered default as to all Defendants.

On January 19, 2022, Plaintiffs dismissed Chih Wei Lee, individually and trustee of the Chih Wei Lee Retirement Trust Dated January 01, 2009. Doe Defendants were not dismissed in this request for dismissal. (Thus, the remaining Defendants are Defendant Chen and his two daughters, Irene and Winnie.)

Between March 2, 2022 and August 16, 2023, various minute orders were filed, namely regarding the settlement. On August 16, 2023, Plaintiff’s Counsel informed the court that default judgment material had been filed but rejected due to clerical errors.

On August 18, 2023, Plaintiffs filed the instant application for entry of default judgment.

Discussion

Plaintiffs seek default judgment against Defendant Chen, Irene Chen, and Winnie Chen in the amount of $144,123.47, including $143.348.47 of damages.

The only defect with the application is that Doe Defendants have not yet been dismissed, which is mandatory for default judgment. (See Cal. Rules of Court Rule 3.1800.)

That said, default is denied for a reason aside from the application: default was improperly entered against Defendants because they were not properly served.[1]

CCP section 415.20 provides that “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served  . . . a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business . . . in the presence of a competent member of the household . . . at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail . . . .” (Code Civ. Proc., § 415.20(b).) When using substituted service as to an individual defendant, a good faith effort at personal service must first be attempted. I.e., there must be a showing that summons “cannot with reasonable diligence be personally delivered” to the individual defendant. (See Rutter Group, D. Service of Summons, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 4-D, citing Code Civ. Proc., § 415.20, subd. (b).) Two or three attempts to personally serve defendant at a “proper place” ordinarily qualifies as “reasonable diligence.” (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)

Here, the only filings related to POS are the 5/08/23 filings. As to each, service is explained as follows: a registered California process server (Rod Collins) served each Defendant with a first amended complaint (and other documents) by substituted service on 4/10/2020 at 3 PM at 1313 Grand Ave. II348 Walnut, Ca. 91789 by leaving the aforementioned documents with “Kevin Jin—Owner CPA Mail Service” and thereafter mailing the documents via first-class, postage prepaid. But the POS’ do not (1) provide a declaration of diligence that personal service upon Defendants was attempted, (2) whether the address is Defendants’ abode, and (3) whether Kevin Jin is a competent member of the household.

Conclusion

Based on the foregoing, the application for default judgment is denied because Defendants have not been properly served with summons and complaint.[2]