Judge Christian R. Gullon, Case Number: 23PSCV00979, Date: 2024-01-30 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV00979, Date: 2024-01-30 Tentative Ruling

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Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

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Defendant Ven-Chee Koh dba Win Way Academy’s MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT is DENIED, notably as the court questions Defendant’s credibility based upon insufficient and conflicting statements/evidence.

This is a contracts case arising from the alleged breach of a commercial rental agreement.

On April 4, 2023, Plaintiff RKW & MLW Fmy Lmt Prtsp I, a CA LP DBA Walnut Commercentre filed suit against Defendant Ven-Ghee Koh, an individual DBA Win Way Academy alleging damages of $37,862.48, with interesting continuing to accure on the past due rent.

On July 18, 2023, default judgment was entered against Defendant in the amount of $48,039.08.

Defendant brings forth the motion pursuant to CCP Section 473.5. (Motion p. 2:4-5.)

(a) When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action. (Code of Civ. Proc., § 473.5, emphasis and underline added).

As to whether Defendant received actual notice of the action via substituted service,[1] CCP section 415.20 subdivision (b) states in relevant part:

If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, 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, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, 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, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing. (Code of Civ. Proc., § 415.20, subd. (b), emphasis added.)

As to who can be served, a person will be considered to be of suitable age and discretion where the nature of his/her “relationship with the person to be served makes it more likely than not that they will deliver process to the named party.” (Reply p. 2, citing Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1393,[2] quoting 50 Court St. Assoc. v. Mendelson et al. (1991) 151 Misc.2d 87, 91 (Mendelson)); see also Motion p. 4, citing Ellard v. Conway (2001) 94 Cal.App.4th 540.) “In applying this principle, the courts search for indications that the person served can be counted on to inform the named party of the proceeding.” (Mendelson, supra, 6 Cal.App.4th at p. 91.)

In sum, combining the rules above, if (1) affidavits indicate that substituted service did not comply with the statutory mechanism (i.e., summons and complaint was not left with competent member of the household, who is 18, and informed of the contents thereof)—and (2) the motion is timely, the court may in its discretion[3] set aside the default and default judgment.

Plaintiff disputes the timeliness of the motion arguing that the deadline to file was May 18, 2023, six months after entry of default. (Opp. p. 5, citing Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42 (Manson).)

Here, the court disagrees with Plaintiff. The plain language of the statute provides that the six-month period may run when written notice of default judgment has been entered. Six months from the entry of default judgment (7/18/23) is 1/18/24. As the motion was filed on 1/5/24, the motion is timely. To the extent that Plaintiff relies upon Manson, the case is inapposite because the motion there was brought pursuant to CCP section 473(b) (e.g., mistake), not section 473.5.

Therefore, the motion is timely, meaning that the first prong of section 473.5 subdivision (c) is satisfied.

Prong 2: Whether Defendant Provides Adequate Evidence (Affidavit(s)/Declarations) To Demonstrate That His Lack of Actual Notice Was Not Caused by His Avoidance of Service or Inexcusable Neglect

The POS indicates that a registered process server served a “John Doe; Asian; 70; 5’7”; 150 lbs; Black Hair; Brown Eyes—Identified as Occupant/Refused Name.” (emphasis added).

Defendant moves for relief on the grounds that the proof of service (POS) was, essentially, fraudulent. Specifically, he argues that service was not effectuated upon a “John Doe” (as stated in the POS) because he lives alone, suggesting no one could have been served. (Koh Decl., ¶3 [“I have been living alone by myself at [address] for the past thirteen (13) years. I have never had any other co-occupants who lived at my home.”], emphasis and underline added).

Preliminary, Defendant argues that Plaintiff has failed to meet its burden to establish valid service.[4] (Motion p. 3:24-25, citing to American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383 (Zara).) Not so. As stated in the Zara case, “a registered process server's declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration.” (Id. at p. 390.) Here, the POS filed by plaintiff included the declaration of a registered process server averring that he served a John Doe at the subject address. Consequently, because of the statutory presumption, Defendant was required to produce evidence that he was not served. (Ibid.)

Here, however, for the specific reasons below, Defendant failed to produce evidence to overcome the presumption that service was proper.

First and foremost, the process service took a photograph that shows an individual behind the front door, inside of the premises wearing a white robe. (Opp. p. 5.) To this, Defendant changes his narrative in Reply: “on occasion Defendant may have had a houseguest or visitor spend the night.” (Reply p. 2.) But if Defendant knew where he was on the day of purported service, how would he not know at the very least explain who was in his home on the day of purported service?[5] Was it an intruder? Was it a friend? Was it a family member? Or was it Defendant himself? After all, Defendant does not provide physical descriptors for the court to ascertain the difference between John Doe and Defendant.[6]

Second, Defendant avers that he has “an alibi.” (Koh Decl., ¶5.) On the day of purported service, Defendant was tutoring. However, despite knowing where he was the day (i.e., tutoring), Defendant does not provide any details about or a declaration from the individual he was tutoring to corroborate his “alibi.”

Third, to the extent that Defendant maintains that service upon an Asian could not be possible because there “are no other Asians living in the neighborhood,” (Koh Decl., ¶6), that is an improper lay opinion (i.e., Defendant has (presumably) not gone to each house to determine that they are “either Hispanic or Black.” (Koh Decl., ¶6).)

Fourth, to the extent that Defendant argues even if a “human being was handed papers” (Reply p. 4:21-22) that person is not a member of Defendant’s household, absent any information about this person, this argument is irrelevant.

Finally, to the extent that Defendant in Reply submits the affidavit of a neighbor who attests that Defendant has lived next door to Defendant for 15 years (Reply p. 5),[7] that but further draws into question Defendant’s credibility. Defendant in his motion and declaration states he has lived in the house for 13 years (Koh Decl., ¶3); now his story changes again as Clark states they have been neighbors for 15 years. Furthermore, Defendant states he lives at 803 N. Del Sol Lane in the city of Diamond Bar whereas Clark’s declaration states he resides at 23972 Sunset Crossing Road in the city of Diamond Bar. (Clarke Decl., ¶2.) As the two do not live on the same street, it is unclear as to their capacity as neighbors (i.e., live next door to see who comes and goes).

All in all, though mindful of the public policy strongly favors granting relief, the arguments and evidence, when read in their totality, draw into question the credibility and veracity of Defendant’s contention that POS was improper. (See Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653, 658 [“The weighing of the veracity of the affidavit was in the province of the trial court.”].)

Based on the foregoing, the court, exercising its discretion, DENIES the motion.

[1] Defendant does not dispute that substituted service was permissible. Here, even assuming it was disputed, the process server’s declaration indicates that personal service (i.e., at Defendant’s home) was attempted four times (4/4/23 at 8:02 PM, 4/5/23 at 9:13 AM, 4/6/23 at 2:04 PM, and 4/7/23 at 5:46 PM). “Ordinarily, ... two or three attempts at personal service at a proper place should fully satisfy the requirement of reasonable diligence and allow substituted service to be made.” (Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392, quoting Note, Substituted Service of Process on Individuals: Code of Civil Procedure Section 415.20(b), supra, 21 Hastings L.J. at p. 1277.) Therefore, with four attempts, the ‘reasonable diligence’ is satisfied. The process server, John Baldwin, will be available during the 1/30/2024 hearing to provide further clarity on the service of process. (See Baldwin Decl., ¶6.)

[2] The facts of Bein are inapposite because it involved the issue of whether a gate guard of a gated community constitutes as a competent member of the household (§ 415.20, subd. (b)). (Id. at p. 1392.)

[3] See Goya v. P.E.R.U Enterprises (1978) 87 Cal.App.3d 886, 893 [“[C]ourt [] invested with the discretion to set aside the default and default judgment.”].)

[4] Defendant also cites to Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984 for its proposition that the plaintiff must prove by a preponderance of the evidence that service is valid until there is an evidentiary hearing. (Motion p. 5.) But that language from Bolkiah involved the issue of whether service was made according to the requirements of the Foreign Sovereign Immunities Act, not whether service complied with California law. Thus, reliance on the case is misplaced.

[5] (And as Defendant avers that few people occasionally visit in contrast to many people consistently visiting, it is reasonable to assume that Defendant would be able to recall who was visiting him or spending the night.)

[6] And in Zara, the appellate court held that the POS on its face was untruthful because the POS described a man with different colored hair and of different ethnicity than defendant. (Id. p. 390; see also fn. 2 [“In addition to defendant's declaration that the description did not fit, the trial court and plaintiff did not contradict this aspect of defendant's declaration when they saw defendant at the motion hearing.”].) Here too the court is compelled to order Defendant’s appearance in court to compare the individual in the POS and Defendant.

[7] Additionally, the affidavit is untimely and should have been raised in Reply.