Judge Stephen P. Pfahler, Case Number: 22STCV12566, Date: 2024-04-04 Tentative Ruling

Plaintiff Young Lim alleges defendant Kap Moon entered into an investment agreement whereby Moon agreed to invest $100,000 Leading Town SDUS Inc. dba Music Café Chorus. Plaintiff alleges the agreement was in fact with third party Kyonga Nam, though the agreement attached to the complaint lists the name Jongju Na.

Notwithstanding, Lim alleges the rights to enforcement of the agreement were assigned, and Lim obtained a $27,000 judgment in a prior action. Lim alleges two other “related cases” 19STCV14007[1] and 19STCV08038.[2] Lim appears to now seek execution on the judgment, and maintains Moon fraudulently continues to evade collection.

On April 14, 2022, Lim filed the instant action for Fraud, Fraudulent Interference with Economic Advantage, Fraudulent Concealment, Fraudulent Abuse of Process, and Fraudulent Malicious Prosecution. On November 9, 2022, Plaintiff filed a first amended complaint.

On April 20, 2023, the clerk entered a default against Moon. On August 25, 2023, the court granted the motion to vacate the default on grounds of improper service. On December 27, 2023, a second default was entered by the clerk against Moon.

· The court takes judicial notice of the filed first amended complaint, but not the content of the pleading for the truth of the matter asserted.

· The court takes judicial notice of the entry of the default by the clerk on December 27, 2023.

· The court takes judicial notice of the December 27, 2023, filed proof of service, and considers the document for purposes of the motion.

Specially Appearing Defendant Kap Moon moves to vacate the December 27, 2023, entered default on grounds of improper service. Moon in conjunction or alternatively moves to quash service as well. Lim in opposition contends the motion relies on “fraud” to the court regarding the service, without any specific address regarding the substantive claims raised in the motion itself. The opposition also includes a declaration from the process server disputing the circumstances relied upon in the motion. In reply, Kap Moon asserts that Plaintiff failed to prove service of process.

Moon moves for relief under Code of Civil Procedure section 473, subdivision (d) regarding a void order. A trial court can set aside a judgment pursuant to 473, subdivision (d) on a void judgment. (Talley v. Valuation Counselors Group, Inc. (2010) 191 Cal.App.4th 132, 146.) “A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.” (In re Marriage of Goddard (2004) 33 Cal.4th 49, 56.) “A judgment is void if the court lacked jurisdiction over the subject matter or parties, for example, if the defendant was not validly served with summons.” (Johnson v. E-Z Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86, 98.)

A plaintiff has the initial burden to establish valid statutory service of a summons and complaint. (Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439-40; Floveyor Internat. v. Sup. Ct. (1997) 59 Cal.App.4th 789, 794.) Three proofs of service were filed. The first filed on September 21, 2023, indicates substituted service on September 17, 2023. The proof of service lacks any identification of prior attempts, and instead indicates service on Kap Moon. An October 3, 2023, filed proof of service indicates direct service also on September 17, 2023, at the same time. On December 27, 2023, Plaintiff a third proof of service again indicating service on September 17, 2023, at 1:15 p.m. The court considers the last filed item as the intended operative proof of service.

The proof of service was signed by Curi Kenmark, a registered process server. “The return of a process server registered [under] Division 8 of the Business and Professions code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” (Evid. Code, § 647.)

Kap Moon only denies any service of the summons and complaint. [Declaration of Kap Moon.] Bryan Moon, son of Kap Moon, acknowledges a female process server came to the correct address, but contends the process server left the summons and complaint with a four year old child “Hajoon” who answered the door at the time. Bryan Moon maintains the process said nothing and also denies the papers ever reached Kap Moon, as “He was not at the premises at this time.” [Ibid.] Process server Curi Kenmark, in a counter declaration attests to speaking with someone with a “male voice” asking “Who are you?” The process server asked if the person speaking was Kap Moon, which was purportedly confirmed with “Yes. What’s up?” The process server explained the service of legal documents, and was instructed to “just put it [the documents] there.” The declaration contains a represented picture of the home with the envelope on the counter and the child. All communications occurred in Korean.

The declaration of Kap Moon specifically omits any reference to the location and presence of Defendant at any and all relevant times, especially including any denial of communicating with the process server. Nothing denies the correct address as well. Instead Kap Moon apparently seeks to imply that all communications only occurred with Bryan Moon. The court declines to make this finding in direct contradiction to the declaration of the process server given the specificity of the process server, vagueness of the supporting declarations, and now second motion to vacate a default following based on challenges to service. The court finds the declaration of the process server credible, and Defendant seeks to evade service.

“It is established that a defendant will not be permitted to defeat service by rendering physical service impossible. In In re Ball (1934) 2 Cal.App.2d 578 [38 P.2d 411], it was held that effective service was made when the process server informed the defendant that he had ‘“another one of those things for you,”’ and when the defendant moved away, threw the summons and complaint so that it fell a few feet away from the defendant. ‘We take it that when men are within easy speaking distance of each other and facts occur that would convince a reasonable man that personal service of a legal document is being attempted, service cannot be avoided by denying service and moving away without consenting to take the document in hand.’ (Citation.)” (Khourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009, 1013–1014.)

The court also declines to consider any argument for substituted service and proper service on a competent member of the household, such as the four year old. (Code of Civ. Proc., 415.20, subd. (b).) Plaintiff alleges direct service, not substituted service. The representation of Bryan Moon denying service relies on inapposite argument and conclusion. Kap Moon also argues in reply that the court should not consider the process server’s declaration given that the actual communication was in Korean, and the court is unable to assess what was actually said. Kap Moon also asserts that while the process server had the opportunity to photograph at will, he only took a picture of the child. However, these arguments are unavailing because the process server, Curi Kenmark, testifies under penalty of perjury that he and Kap Moon’s communication was true and correct. Further, the photograph attached shows the legal documents, summons, and amended complaint, which is more important than showing a picture of Defendant. It is reasonable to assume that Kenmark took this picture following the discussion with Kap Moon.

The court therefore finds completed service upon leaving the papers with a person representing themselves as Kap Moon and instructing the server to leave the papers in the house. Continued evasion will only lead to Plaintiff either pursuing substituted service or service by publication, and further delayed adjudication of the action. Defendant will not evade service simply by taking advantage of the rules for service and seek to enforce substituted service on a person in the house apparently in charge, or via publication.

Because public policy disfavors defaults, Kap may still file an alternative, timely request for relief from the December 27, 2023, entered default, with a proposed responsive pleading constituting an appearance in the action, as part of the motion.

Before any further filings occur however, the court orders Plaintiff Lim to file a notice of related cases in the courtroom(s) of the earlier filed cases identified as related, and in fact involving the underlying judgment apparently the subject of collection in the subject action.

[1]Lim v. Moon. June 1, 2021, judgment in favor of Lim for $27,000.

[2]Moon v. Na, et al. November 26, 2019, default judgment entered in favor of Kap Moon against Sung Joo Na, Kyonga Nam, Jongju Na, and Leading Town SDUS, Inc. for $1,098,518.99.