Judge: David A. Rosen, Case: 20GDCV00906, Date: 2023-04-14 Tentative Ruling


Case Number: 20GDCV00906    Hearing Date: April 14, 2023    Dept: E

52 Hearing Date: 04/14/2023 – 8:30am
Case No. 20GDCV00906
Trial Date: N/A
Case Name: AREN GRIGORYAN, et al. v. JAY UHM, et al.

4 TENTATIVE RULINGS – 2 MOTIONS TO SET ASIDE DEFAULTS AND 2 MOTIONS TO QUASH SERVICE OF SUMMONS

 

Moving Party:  Specially Appearing Defendant, Jay Uhm


Responding Party: No Opposition

 

No Opposition or Reply Submitted

 

Moving Papers: Motion; Jay Uhm Decl.; Proposed Order; Decl. Park; Decl. Decl. Diane Uhm

 

Opposition Papers: No Oppo

 

Reply: No Reply

 

RELIEF REQUESTED¿ 

Defendant, Jay Uhm, makes a special appearance to move the court to Set Aside Default entered against Defendant on the ground that Plaintiffs failed to properly serve Summons on Defendant and Defendant had no actual knowledge in regard to Plaintiffs’ Request for Default/Default Judgment. Moreover, as noted fully in the concurrently filed Motion to Quash Summons, Uhm claims there was no proper service of summons and this court lacks personal jurisdiction over Defendants.

 

Defendant moves this court pursuant to C.C.P. section 473.5 and 473(d) and any other legal authorities applicable to this Motion.

 

[Defendant Diane Uhm also made a motion to set aside the default. Since Diane’s motion is nearly identical, the Court will analyze the two motions as one.]

 

Procedural
16/21 Day Lapse (CCP §12c and §1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok


Correct Address (CCP §1013, §1013a): Yes/No – This motion was allegedly served by both US Mail and email. As far as mailing this motion, the service was not done appropriately. The address served was “Rana Parsanj, Parsanj Law Group, 500 N. Brand Bld, Suite 1250.” There are at least two problems with the mailing address. The first is that the actual mailing address includes Blvd, not “Bld.” The second, and more importantly, is that the address does not indicate a city, state, or zip code. On eCourt, the address is listed as 500 N. Brand Blvd. Suite 1250, Glendale, CA 91203.

As to email, the email address on eCourt is “rana@parsanjlaw.com”. On the POS, the email served was “Rana@parsanjlaw.com”.

Movant to address whether Notices of these Motions were properly served at oral argument.

DECLARARTION of JAY UHM

The Declaration of Jay Uhm stated as follows:

1. I am a permanent resident of Korea, and I have been a permanent resident of Korea since 2006. My current intent is to continue living in Korea for an indefinite period of time.

 

2. The Proofs of Service Plaintiffs filed, attached as Exhibit C to the Declaration of B. Christine Park, are either defective or fraudulent. The Proofs of Service by Personal Service and Substitute Service are all based on Plaintiffs’ attempted service of me at Tahnay Corporation on May 26, 2021. (See Limon Dec., paras. 10-12, Ex. A to Park Dec.) These Proofs of Service all state that Diane Uhm and I were served by personal service at Tanhay Corporation , located at 12411 McCann Dr., Santa Fe Springs, CA , or substituted service by leaving a copy of the Summons before Don Cho on May 26, 2021, at 9:00 am. (Limon Dec., paras. 9-12, Ex. A to Park Dec.)

 

3. However, as admitted in Mr. Limon’s Declaration re: Due Diligence, neither Diane Uhm nor I was present at Tanhay Corporation, located at 12411 McCann Dr., Santa Fe Springs, CA, to accept personal service on May 26, 2021. (Id.) We were residing in Korea on May 26, 2021.

 

4. My counsel advised me that Mr. Limon served Summons on Don Cho, the General Manager of Tanhay. However, Mr. Limon does not state whether Mr. Cho is an authorized person to accept service of process on behalf of the Defendants. In fact, Diane Uhm and I never authorized Mr. Don Cho to accept service of summons or any documents related to this matter on our behalves (sic).

 

5. Diane Uhm and I did not work at Tanhay Corporation , located at 12411 McCann Dr., Santa Fe Springs, CA, between 2020 through present.

 

6. Based on my knowledge, Plaintiffs never attempted to serve Diane Uhm or me in Korea through the Hague Convention, as required by California and Korean law.

 

7. My counsel advised me that Mr. Limon also attempted to serve my wife and me at 2580 Nixon Way, Fullerton, CA. This is my brother, Mike Uhm’s, house address. Diane Uhm and I never authorized Mike Uhm to accept service of process on our behalves. Neither did we authorize Mike Uhm to accept any legal documents related to this matter on our behalves.

 

8. My counsel advised me that Plaintiffs may have attempted to serve Summons at the house they rented at 1025 Calle Sonrisa, Glendale, CA 91208 (“Sonrisa House”) . However Diane Uhm and I sold this property around June 2020, and have not returned to this location since then. We did not receive any documents related to this matter sent to this address.

 

9. Until around December 2022, Diane Uhm and I had no actual knowledge that Plaintiffs filed a Request for Default/Default Judgment against us (according to my attorney the Request for Default Judgment was rejected by the court). According to my attorney, the proofs of service by mail filed by Plaintiffs state that Plaintiffs mailed a copy of the Request for Entry of Default, Statement of Damages, Judgment, and Memorandum in Support of Default Judgment, to Jay Uhm at 2580 Nixon Way, Fullerton, CA 92835, and Diane Uhm at 1025 Calle Sonrisa, Glendale, CA 91208. (See 12/1/2021 Proof of Service of Request for Entry of Default, Ex. D to Park Dec.; 1/11/2022 Proof of Service re: Statement of Damages and other documents, Ex. E to Park Dec.) As stated above, we have not resided nor worked at these two addresses since 2006. Diane Uhm and I never authorized anyone at these two locations to accept service of process and documents related to this matter at these two addresses.

 

10. Diane Uhm and I did not learn that a Request for Default/Default Judgment was filed, and that a Default had been entered on December 1, 2021, until around December 2022. Since then, Diane Uhm and I retained counsel to make this special appearance. We did not have actual knowledge of Plaintiff’s Request for Default/Default Judgment until around December 2022, and this lack of knowledge was not caused by our avoidance of service or inexcusable neglect. We did not have any knowledge because we reside in Korea, and Plaintiffs did not serve us in Korea through the Hague Convention, as required by law.

 

11. Diane Uhm and I purchased our house located at 1025 Calle Sonrisa, Glendale, CA, in 2004. When I moved back to Korea in 2006, I leased out the Sonrisa House, until I finally sold the house around June 2020.

 

(Decl. Jay Uhm.)

 

ANALYSIS

Preliminary Matter
Both Defendants’ motions are poorly written and confusing.

Defendants’ counsel simply asserts random facts but does not tie those facts to law to explain why these alleged facts are grounds for granting a motion to set aside a default.

For example, Defendants argue that the Plaintiffs failed to properly serve Defendants via the Hague Convention. Defendants cited no case law as to why this is relevant nor what law provides that this is how Defendants were supposed to be served.

Another example of Defendants’ counsel’s poor writing and research is on page 4 of the moving party’s papers, where it is stated, “However, Mr. Limon [the process server, who is not a registered process server-ed.] does not state whether Mr. Cho is an authorized person to accept service of process on behalf of Defendants. (Id.) In fact, Defendants never authorized Mr. Don Cho to accept service of summons or any documents related to this matter on their behalves. (Jay Dec., para. 3; and Diane Dec., para. 3.)” (Def. Mot. p. 4.)

Defendants cited no case law that service is improper unless Defendants “authorized” someone to accept service on their behalf. In fact, for substitute service, the code does not indicate that Defendants have to authorize someone to accept service on their behalf. “ 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.” (CCP §415.20(b).) For substitute service, nothing in this statute states that Defendants had to authorize an individual to accept service.

Further, Defendants’ counsel goes back and forth in citing CCP §473(d) and 473.5 in the Argument section without explaining why any of the alleged facts apply to either statute.

473.5

As a preliminary matter, Defendants do not even address whether this motion is timely under 473.5(a).

However, Defendants do bring up 473.5(b). Under CCP §473.5(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.

 

(CCP §473.5(b).)

 

Although Defendants cited this statute and a case involving this statute, Defendants did not comply with its requirements.

 

For example, neither Defendants state that they did not have actual notice of the action. Defendants only attest that they did not have actual knowledge of Plaintiffs’ Request for Default/Default Judgement until around December 2022, and that this lack of knowledge was not caused by their avoidance of service or inexcusable neglect.

 

In fact, Defendants cite Sakaguchi v. Sakaguchi (2009) 173 Cal. App. 4th 852, 861-862. The holding of this case actually counters Defendants’ argument as to 473.5.

 

As stated in Sakaguchi:

 

Section 473.5 requires that the motion to set aside the default judgment 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” and “a copy of the answer, motion, or other pleading proposed to be filed in the action.” (§ 473.5, subd. (b).) Takeshi's affidavit states, “I have never personally received any of the papers and/or documents that Mr. Golan [Takeshi's attorney] is talking about in his declaration. [9] I was in State Prison at the time and not at home.” Notably, Takeshi does not declare that he lacked actual knowledge of the action, nor does the affidavit show that any lack of knowledge was caused by *862 excusable neglect. Nor did Takeshi submit an answer, motion, or other pleading, as required by statute, when he moved to set aside the default. Consequently, the trial court did not abuse its discretion in denying the motion to set aside the judgment on the basis of section 473.5. (See Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319, 13 Cal.Rptr.3d 716.)

 

(Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 861-862.)

 

Here, Defendants did not state they lacked actual knowledge of the action, nor did Defendants submit an Answer with their moving papers.

 

Therefore, CCP sec. 473.5 does not support the grant of this Motion.

 

CCP §473(d)

 

Zirbes v. Stratton notes as follows:

“In order to obtain in personam jurisdiction through any form of constructive service there must be strict compliance with the requisite statutory procedures. [Fn. omitted.]” ( Stamps v. Superior Court (1971) 14 Cal.App.3d 108, 110 [92 Cal.Rptr. 151].) To be constitutionally sound the form of substituted service must be “reasonably calculated to give an interested party actual notice of the proceedings and an opportunity to be heard ... [in order that] the traditional notions of fair play and substantial justice implicit in due process are satisfied.” 

 

(Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1416.)

 

Ellard v. Conway states:

 

“[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444, 29 Cal.Rptr.2d 746.) Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.

 

(Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.)

 

Strathvale Holdings v. E.B.H. states:

 

“ ‘Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660, 16 Cal.Rptr.3d 76, 93 P.3d 1020, quoting Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288, 109 P.2d 942, italics added.) “When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and ‘thus vulnerable to direct or collateral attack at any time.’ ” (Ibid., quoting Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 119, 101 Cal.Rptr. 745, 496 P.2d 817.)

 

A motion to vacate a void judgment is a direct attack. (Walker v. San Francisco Housing Authority (2002) 100 Cal.App.4th 685, 693–694, 122 Cal.Rptr.2d 758; 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 2, p. 508.) “[O]n direct attack, lack of jurisdiction may be shown by extrinsic evidence, i.e., evidence outside the judgment roll.” (8 Witkin, supra, § 5, p. 513.) The Witkin treatise explains the proper procedure to be taken to vacate a judgment that is void, but appears proper on its face: “The rule prohibiting extrinsic evidence does not mean that a judgment void for lack of jurisdiction can be enforced merely because the supporting papers, though false in fact, are in good form. It merely requires that the challenge of a judgment good on its face should be made by a direct attack.” (8 Witkin, supra, § 11, p. 518.)

…

“ ‘A motion to vacate a default and set aside [a] judgment (§ 473) “is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse ... the exercise of that discretion will not be disturbed on appeal.” ’ (Lint v. Chisholm (1981) 121 Cal.App.3d 615, 619–620 [177 Cal.Rptr. 314], quoting City Bank of San Diego v. Ramage (1968) 266 Cal.App.2d 570, 579 [72 Cal.Rptr. 273].) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925 [101 Cal.Rptr. 568, 496 P.2d 480].)” (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1318–1319, 13 Cal.Rptr.3d 716.)

(Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.)

 

Discussion

As a preliminary matter, the Court is confused why Defendants first argue they were not personally served at Tanhay Corporation. The instant proof of service of summons and complaint shows the same were served by Substitute Service; therefore, the Court is unclear why Defendants are contesting personal service when the proof of service on file with eCourt refers to substituted service. Further, while Exhibit C of the Park declaration includes these alleged proofs of service for personal service, the Court is unclear where these are from or why they are relevant to this motion.

Nonetheless, both Defendants’ declarations stated they were not present at Tanhay Corporation to accept personal service on May 26, 2021.

The instant proof of service of summons was allegedly served by substituted service on 5/26/2021. This Proof of service states that it was sub-served to a business, and Don Cho, General Manager of Tanhay Corporation (an employee of Jay and Diane Uhm), was served.

CCP §415.20(b) states:

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.

 

(CCP §415.20(b).)

 

Defendants argue that they were not properly served by substituted service because Mr. Limon does not state whether Mr. Cho is an authorized person to accept service of process on behalf of Defendants. Defendants cite no case law or statute that such “authorization” is legally required for substitute service.  Defendants also argue that Mr. Cho was never authorized to accept service of summons; however, Defendants cite no case law or statute to support that this is a requirement.

 

However, Defendants do state in their declaration, “Diane Uhm and I did not work at “Tanhay Corporation located at 12411 McCann Dr., Santa Fe Springs, CA between 2020 through present.” (Decl. Jay ¶5, Decl. Diane ¶5.)

 

Presumably, although Defendants don’t explicitly assert this as their argument, Defendants are arguing that substituted service on the usual place of business was not achieved because the location at which Defendants were allegedly sub-served was not their usual place of business since Defendants “did not work” at Tanhay Corporation located at 12411 McCann Dr., Santa Fe Springs, CA between 2020 through present. The Court takes Judicial Notice per CA Evidence code section 452 of the records in the Court’s file.  There are two declarations executed by process server Armando Limon in the Court’s file, one dated March 4, 2021, and the other, June 1, 2021. These declarations, taken together with the proofs of service on Diane Uhm and Jay Uhm, explain why Mr. Limon attempted to serve defendants at Tanhay Corporation in Santa Fe Springs, also noting that Don Cho, the person who accepted the sub-served summons and complaint, was, in May 2021, the General Manager of Tanhay.  This complies with section 418.20(b), supra. While defendants state that they did not “work at” these premises, they never say that they are not employed by nor Owners of this corporation, nor did defendants say that they were not present at Tanhay Corporation in Santa Fe Springs at any time between 2020 and the present.

 

Plaintiff has filed no Opposition to these motions, but the moving papers and the proofs of service in the file establish that both Defendants were properly sub-served here.

 

TENTATIVE RULING

The Motions to set aside the default and the Motions to Quash are denied.