Judge: Douglas W. Stern, Case: 22STCV12566, Date: 2023-07-25 Tentative Ruling

Case Number: 22STCV12566    Hearing Date: July 25, 2023    Dept: 68

Motion to Set Aside/Vacate Default and Quash Service of Summons

BACKGROUND

Apparently, this case shall be a “service-challenged” case, where neither side appears to adhere to the important rule that parties be properly served.  Hopefully there shall be no future errors that delay these proceedings.

“I was not served.”

Defendant Kap S. Moon (Defendant) filed this motion, first on May 30, 2023 with a June 23, 2023 hearing date and again on May 31, 2023 with a July 25, 2023 hearing date.  Defendant Moon seeks to set aside the default entered against him as he alleges that the summons and complaint were never served on him.  He asserts that he is entitled to have the entry of default set aside under CCP § 473(d).  He also asks the Court to quash service of the summons and complaint on the grounds that they were never served on him.

The Proof of Service of Summons filed by Plaintiff Young K. Lim shows that the summons was served on Defendant Moon by substituted serviced on someone named “Sung Hun Lee” at 1926 W. Olympic Blvd. (Defendant’s Ex. A.) Defendant filed a declaration from an individual named Seongheon Wi stating that he was the person served by Plaintiff’s process server at 1926 W. Olympic Blvd. and that Defendant Moon does not have any connection with that address. (Defendant’s Ex. D.)

“Neither was I.”

Having chosen to challenge the validity of the claimed service upon him of the summons and complaint, Defendant Moon may not have properly served his papers on Plaintiff.  Plaintiff Lim filed an “Opposition” on July 7, 2023 (when he also responded to the Court’s OSC regarding default judgment).  Lim claims that he was not served with the Defendant’s motion.  (Lim Decl. ¶ 4, 5.)  The Defendant’s attorney filed a Proof of Service claiming that on May 31, 2023 he faxed the moving papers to Plaintiff.  (He had filed the identical motion a day earlier and claimed to similarly have faxed the papers to Plaintiff.  (The Court does not know if there was compliance with Code of Civil Procedure § 1013(e) relating to service by facsimile.)

In his “Opposition” Plaintiff has stated:

“8. Because Moon made an additional fraud in the process of Motion to Vacate Entry of Default and Quash Summons, I request this court to deny his [Moon’s] motion without prejudice at least, and vacate 7/25 hearing and set a new date while ordering to serve the documents to me by regular-mail and by email, blim313@gmail.com, so that I prepare the formal opposition papers in sufficient time.”  (Lim Decl. ¶ 8.)

* * *

11. [3] After waiting for the motion related documents from fraudulent Moon. I have planned to demonstrate the highest degree of dishonesty of Moon so that I will win not only in Motion to Vacate Entry of Default and Quash Summons but also in the order to show cause at the same time on the hearing for all issues.”  (Lim Decl. ¶ 11.)

13. I may be asked why I did not get and print all the motion related documents filed by Moon but not served by Moon while paying about $20 and spending about 30 minutes.  However, I did not do it for the following reasons. [1] 1 believe I do not want to give up my right to be served on time. [2] I do not have the duty to get the Moon’s documents through the website instead of actual serving. [3] I want to discontinue his procedural frauds, since if I get his documents in that way, he would continue his fraudulent abuse of process from the time he will win the motion hearing. [4] I am so poor that I do not like to pay money and to spend my own time to search and print Moon’s documents at each time Moon made fraudulent abuse of process. [5] I want to demonstrate the highest degree of Moon’s dishonesty sand lowest degree of Moon’s credibility. [6] I hope that Moon will be punished by this court for his continuing repetitive frauds. [7] I hope the judicial resources and burden caused by Moon’s frauds will not increase any further.”  (Lim Decl. ¶ 13.)

“It continues.”

The “Opposition” filed by Plaintiff was served by mail on Defendant Moon at 1926 W. Olympic, the address that he states in his motion is not a valid address for him.  It was not served on the attorney who filed the motion to vacate for Moon.  That is most unfortunate, but then again, it was not really an Opposition to the present motion.

In light of the apparent failure of Defendant Moon to have properly served Plaintiff with his motion to set aside the default and to quash service of the summons and complaint, (and the fact that Lim did not serve his “Opposition” on Moon’s attorney) it is proper to continue this matter and order Defendant to properly serve the full and complete set of motion papers on Plaintiff and allow Plaintiff adequate time to file an Opposition.

Order:

1.                  The Motion to Vacate Default and Motion to Quash Service of Summons and Complaint are continued to August 25, 2023.

2.                  Defendant Moon must properly serve all the moving papers on Plaintiff Lim no later than July 27, 2023.