Pak v. Chon CA2/2 ( 2022 )


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  • Filed 5/18/22 Pak v. Chon CA2/2
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
    not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
    not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION TWO
    CLARA PAK,                                                 B310411
    Plaintiff and Respondent,                         (Los Angeles County
    Super. Ct. No. BC537530)
    v.
    DONNA CHON,
    Defendant and Appellant.
    APPEAL from orders of the Superior Court of Los Angeles
    County, Michael L. Stern, Judge. Affirmed.
    Moon & Dorsett and Dana Moon for Defendant and
    Appellant.
    Law Offices of Jong Yun Kim and Jong Yun Kim for
    Plaintiff and Respondent.
    Donna Chon (appellant) appeals from an order denying her
    motion to set aside entry of default and default judgment in this
    action against her for breach of contract, fraud—intentional
    misrepresentation, fraud—negligence, and common count—
    money lent. Appellant also challenges the trial court’s implicit
    denial of her motion to quash service of summons and the
    implicit overrulings of her evidentiary objections. We find no
    error in the trial court’s orders and rulings and affirm.
    BACKGROUND
    In her complaint, Clara Pak (respondent) alleged that
    appellant failed to repay debts incurred between May 2011 and
    November 2013. Respondent alleged that appellant owed
    respondent $70,400 based on an oral agreement to make monthly
    payments.
    On February 25, 2014, respondent filed the complaint. On
    March 4, 2014, respondent filed her proof of service of the
    summons and complaint on appellant as of March 2, 2014, via
    substitute service on Steven Chon.
    Twelve days following service of process, appellant filed a
    grant deed transferring title to her house to her husband, Jaeis S.
    Chon.1
    On June 20, 2014, the trial court entered a default
    judgment against appellant in the amount of $70,944. More than
    six years later, on August 12, 2020, respondent initiated the
    enforcement of default judgment by having a writ of execution
    issued.
    1     Jaeis S. Chon’s legal name on his driver license is “Jaeis
    Steve Chon.”
    2
    On September 22, 2020, appellant filed her “Motion to Set
    Aside Void Entry of Default and Default Judgment and to Quash
    Service of Summons,” accompanied by points and authorities and
    declarations from appellant and her husband, Jaeis Steve Chon
    (Chon).2 Appellant claimed the default judgment was void due to
    lack of proper service. In their declarations, appellant and Chon
    claimed they were never married, that they “broke up” before the
    alleged service took place, and they did not live together at the
    time of service. Appellant argued that the court should set aside
    the judgment under its equitable power and under Code of Civil
    Procedure section 473 (section 473), subdivision (d), which
    permits a court to set aside a void judgment or order.3
    On October 14, 2020, respondent filed an opposition,
    memorandum of points and authorities, and the declaration of
    Jong Yun Kim, respondent’s counsel. To impeach the credibility
    of appellant and Chon, respondent’s counsel located declarations
    from two previous lawsuits in which appellant and Chon were
    plaintiffs. In both cases, appellant and Chon stated they were
    married. The declarations described their decades-long happy
    2     The declaration was signed as “Jaeis Chon.”
    3     Code of Civil Procedure section 473.5, subdivision (a),
    requires that a motion for relief 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.” Appellant’s
    motion was untimely under section 473.5, subdivision (a), and
    appellant does not argue otherwise on appeal.
    3
    marriage, their three children, and loving relationship as a
    couple.
    Appellant filed her reply on November 4, 2020, including
    evidentiary objections to respondent’s evidence.
    A hearing was held on the motions on November 16, 2020.
    The court took the matter under submission and later issued a
    minute order denying appellant’s motion to set aside the default
    judgment, stating:
    “The [appellant] proved difficult to serve but was
    tracked down to the address of a residence that she
    shared with [Jaeis] Stephen [sic] Chon and was
    served via substitute service. [¶] Within twelve days
    of that service, [appellant] transferred the property
    that was in her name to [Jaies] Stephen Chon as a
    gift. She did not answer the complaint but
    apparently had notice of the case based on the
    substitute service and the close coincidence [t]hat she
    transferred the property immediately after service of
    process was effected. . . . [¶] . . . [¶] The
    declarations provided by [appellant] and [Jaeis]
    Stephen Chon defy credibility. [Appellant] is
    unpersuasive in contending that she [does] not know
    of the lawsuit. She does not provide a satisfactory
    reason why substitute service was not effective, why
    it should not be presumed by the Court to have been
    properly accomplished or why she transferred the
    property . . . within just days of the service of the
    summons . . . . Her actions defy logic and are
    consistent with avoidance of the lawsuit and
    collectability of a judgment based on the
    [respondent’s] allegations herein.”
    The court did not enter any ruling on appellant’s motion to
    quash or objections.
    4
    On November 25, 2020, appellant filed a motion for
    reconsideration, seeking an express ruling on her motion to
    quash and objections. On November 30, 2020, appellant filed an
    ex parte application to have the reconsideration motion heard
    before the deadline for appeal. Respondent opposed the ex parte
    application. On December 1, 2020, the trial court denied
    appellant’s ex parte application.
    Appellant filed her notice of appeal from the order after
    judgment on January 14, 2021.
    On January 20, 2021, respondent filed her opposition to
    appellant’s reconsideration motion. On January 26, 2021, the
    trial court stayed the entire case and took off calendar the
    reconsideration motion based on the fact that appellant filed a
    notice of appeal.
    DISCUSSION
    I.    The trial court did not err in denying relief from
    default under section 473, subdivision (d)
    A.    Applicable law and standard of review
    Section 473, subdivision (d) provides that a trial court
    “may, on motion of either party after notice to the other party, set
    aside any void judgment or order.” A decision whether to grant a
    motion to set aside a judgment under section 473, subdivision (d),
    is within the trial court’s discretion. (Cruz v. Fagor America, Inc.
    (2007) 
    146 Cal.App.4th 488
    , 495 (Cruz).) The trial court has no
    statutory power to set aside a judgment that is not void. (Id. at
    pp. 495-496.) We review de novo a trial court’s determination as
    to whether a judgment is void. (Id. at p. 496.) Thus, the
    reviewing court “faces two separate determinations when
    considering an appeal based on section 473, subdivision (d):
    5
    whether the order or judgment is void and, if so, whether the trial
    court properly exercised its discretion in setting it aside.” (Nixon
    Peabody LLP v. Superior Court (2014) 
    230 Cal.App.4th 818
    , 822.)
    B.     The judgment was not void
    “In determining whether an order is void for purposes of
    section 473, subdivision (d), courts distinguish between orders
    that are void on the face of the record and orders that appear
    valid on the face of the record but are shown to be invalid
    through consideration of extrinsic evidence.” (Pittman v. Beck
    Park Apartments Ltd. (2018) 
    20 Cal.App.5th 1009
    , 1020
    (Pittman).) Thus, if a defendant files a motion to vacate a default
    judgment more than two years after the judgment is entered, the
    only relief available under section 473, subdivision (d), is to show
    service was void on the face of the judgment roll. (Rogers v.
    Silverman (1989) 
    216 Cal.App.3d 1114
    , 1120-1121.)
    “‘“A judgment or order is said to be void on its face when
    the invalidity is apparent upon an inspection of the judgment-
    roll.”’” (Cruz, supra, 146 Cal.App.4th at p. 496.) Inspection of the
    judgment roll in this case does not reveal that the judgment was
    invalid. Instead, the record shows that appellant was properly
    served by substitute service pursuant to Code of Civil Procedure
    section 415.20, subdivision (b), on March 2, 2014. The registered
    process server, Bryan Canas, filed a declaration of due diligence
    stating that he unsuccessfully attempted service on appellant at
    her Torrance, California residence address on three separate
    occasions between February 26 through March 1, 2014. On
    March 2, 2014, on his fourth attempt, Canas declared that the
    summons and complaint were “sub-served” on “Steven Chon,
    Spouse Co-resindent [sic] Asian M Gray hair 60 years old 5’9[”]
    185 lbs.” The following day, Canas sent via first class mail,
    6
    postage prepaid, a true copy of the summons and complaint to
    appellant at the same address.
    Pursuant to Code of Civil Procedure section 417.10,
    subdivision (a), the proof of service contained an affidavit
    showing the time, place, and manner of service, as well as the
    name of the person to whom a copy of the summons and
    complaint were delivered. The proof of service was filed with the
    court on March 4, 2014.
    The proof of service appears valid on its face. Appellant
    makes no argument that the judgment roll shows an apparent
    invalidity. Instead, appellant argues that extrinsic evidence, in
    the form of declarations, shows that Chon was not at home at the
    time of the purported substitute service. Chon also disputed the
    name and description contained in the proof of service, claiming
    that the name of the person in the summons was “Steven Chon”
    while his legal name is “Jaeis Steve Chon,” and his physical
    description was inaccurate, as he was described with gray hair,
    five feet nine inches and 185 lbs., while he is in fact six feet tall,
    weighing 200 lbs. and has dark brown hair.
    In addition to the declaration filed by Chon, appellant
    provided a declaration stating that while she “previously lived
    with Jaeis [Chon] at . . . Torrance (‘Residence’), [she] moved out of
    Residence in August or September 2013.” Appellant provided no
    details of where she moved or where she currently lives.4
    4     Respondent provided contradictory evidence in the form of
    reports from two different private investigation firms, which
    confirmed that appellant’s only listed address was the Torrance
    address where she was served in March 2014 by substitute
    service. In addition, one firm searched for any postal forwarding
    requests for Donna Chon in the records of the United States
    7
    “To prove that the judgment is void, the party challenging
    the judgment is limited to the judgment roll, i.e., no extrinsic
    evidence is allowed.” (OC Interior Services, LLC v. Nationstar
    Mortgage, LLC (2017) 
    7 Cal.App.5th 1318
    , 1327.) Appellant has
    failed to show that the judgment was void on its face.
    Appellant argues that there is an exception to the rule that
    a void judgment cannot be challenged based on extrinsic
    evidence. Appellant cites Hill v. City Cab & Transfer Co. (1889)
    
    79 Cal. 188
    , 191 (Hill), for the proposition that although the
    judgment may not be void on its face, a court must treat it as void
    where evidence is admitted without objection or opposition.5 The
    Hill case is inapplicable, as respondent vigorously opposed
    appellant’s extrinsic evidence in this matter. Appellant’s
    extrinsic evidence was not only opposed—the trial court found it
    to lack credibility.
    The judgment was not void on its face as a matter of law.
    Postal Service and found no such forwarding requests. Nor were
    there any divorce records for Donna and Jaeis Chon. The
    databases showed both Donna Chon and Jaeis Steve Chon
    residing at the Torrance address.
    5      The Hill court stated, “If the [plaintiff] should admit the
    facts which show the judgment to be void, or if he should allow
    them to be established without opposition, then, as a question of
    law upon such facts, we do not see why the case is not like that
    where a judgment is void upon its face. . . . The judgment sued
    on, being shown to be absolutely void, cannot be held to be valid,
    or to be a cause of action.” (Hill, supra, 79 Cal. at p. 191.)
    8
    C.      The trial court had no authority to set aside the
    judgment under section 473, subdivision (d)
    “A trial court has no statutory power under section 473,
    subdivision (d) to set aside a judgment that is not void: Once six
    months have elapsed since entry of a judgment, ‘a trial court may
    grant a motion to set aside that judgment as void only if the
    judgment is void on its face.’” (Cruz, supra, 146 Cal.App.4th at
    pp. 495-496.)
    The motion for relief from default in this matter was filed
    over six years after entry of judgment. The judgment was not
    void on its face. Therefore, the trial court properly denied
    appellant relief from judgment.
    II.    The trial court did not err in declining to exercise its
    equitable powers to provide relief from default
    In addition to the court’s statutory power under section
    473, subdivision (d), the trial court has “the inherent power to
    vacate a default judgment or order on equitable grounds where a
    party establishes that the judgment or order was void for lack of
    due process [citation] or resulted from extrinsic fraud or mistake
    [citation].” (County of San Diego v. Gorham (2010) 
    186 Cal.App.4th 1215
    , 1228 (Gorham).) A motion may be brought on
    such ground “even though the statutory period has run.” (Id. at
    p. 1229.) However, “[b]ecause of the strong public policy in favor
    of the finality of judgments, equitable relief from a default
    judgment or order is available only in exceptional circumstances.”
    (Id. at pp. 1229-1230.) A challenge to a trial court’s order
    denying a motion to vacate a default on equitable grounds is
    reviewed for abuse of discretion. (Rappleyea v. Campbell (1994) 
    8 Cal.4th 975
    , 981.)
    9
    In Gorham, the defendant “rebutted the facts stated in the
    proof of service.” (Gorham, supra, 186 Cal.App.4th at p. 1230.)
    Specifically, “[b]ecause Gorham was incarcerated at the time he
    was said to have been served, . . . the proof of service was false
    and consequently the default judgment was void.” (Ibid.)6 Those
    facts were not challenged on appeal. The Gorham court noted,
    “the filing of a false proof of service based on perjury by the
    process server to acquire personal jurisdiction over a party is
    different from other forms of fraudulent acts.” (Gorham, at
    p. 1230.) Because the trial court never obtained judgment over
    the defendant, the court never obtained personal jurisdiction over
    him, and the resulting judgment was void as a violation of due
    process. (Ibid.)
    In this matter, in contrast to Gorham, the trial court
    determined there was insufficient evidence of extrinsic fraud to
    justify relief from default. In fact, the court found that the
    declarations provided by appellant and her husband “def[ied]
    credibility.” In addition, appellant’s act of transferring her
    property within days of the service of summons weighed against
    her. In short, the court found that appellant’s actions were
    “consistent with avoidance of the lawsuit.” Based on the
    evidence, the trial court’s determination that relief from default
    was not warranted was well within its discretion.7
    6     Gorham had provided court minutes showing his guilty
    plea and sentencing in San Diego Superior Court as well as six
    pages of his incarceration history. (Gorham, supra, 186
    Cal.App.4th at p. 1222.)
    7     Appellant makes much of the fact that respondent did not
    provide a second declaration from the process server in this
    10
    III.   The trial court did not improperly fail to rule
    A.     Motion to quash
    Appellant argues that the trial court erred in failing to rule
    on her motion to quash service. The trial court’s implicit denial
    of appellant’s motion to quash service is reviewed under the
    substantial evidence rule.8 (Sonora Diamond Corp. v. Superior
    Court (2000) 
    83 Cal.App.4th 523
    , 535 (Sonora).) Under this rule,
    we resolve “all conflicts in the relevant evidence ‘against the
    appellant and in support of the order.’” (Ibid.)
    The plaintiff bears the initial burden of providing the “‘facts
    of jurisdiction.’” (Sonora, supra, 83 Cal.App.4th at p. 535.)
    Respondent did so by providing the original proof of service and
    declaration of the process server, along with evidence that
    appellant was married to Chon and resided in the same home
    with Chon. In short, the same facts that caused the trial court to
    deny appellant’s motion for relief from default constituted
    substantial evidence in support of the trial court’s decision
    action. However, respondent provided sufficient additional
    evidence, including the original declaration from the process
    server, as well as declarations from private investigators, to rebut
    Chon’s statement that he was not home at the time of service.
    Respondent also provided ample evidence undermining the
    credibility of appellant and her husband, including declarations
    that they filed in other civil matters detailing their loving
    married life with children. The trial court was not required to
    credit Chon’s declaration in the face of this contradictory and
    damaging evidence.
    8     When a court does not expressly rule on an issue, we may
    consider this an implicit denial. (Estate of Moss (2012) 
    204 Cal.App.4th 521
    , 527, fn. 7.)
    11
    denying appellant’s motion to quash service. When the trial
    court denied appellant’s motion for relief from default, it
    determined that service was proper, there was jurisdiction, and
    the judgment against appellant was not entered in error.
    As set forth above, the trial court found that appellant’s
    contrary evidence lacked credibility, and that her actions in this
    matter were consistent with avoidance of the lawsuit. The court’s
    implicit denial of appellant’s motion to quash was amply
    supported by the evidence before the court.
    While appellant asked for an express ruling, her motion
    was taken off calendar after she filed her notice of appeal. When
    a notice of appeal is filed, the superior court loses jurisdiction.
    Thus the matter was properly stayed. (Jackson v. Superior Court
    (2010) 
    189 Cal.App.4th 1051
    , 1056.)
    B.     Objections
    Appellant cites no authority suggesting that a trial court
    commits reversible error in declining to expressly rule on
    objections to evidence. Instead, we “must conclude the trial court
    considered any evidence to which it did not expressly sustain an
    objection.” (Reid v. Google (2010) 
    50 Cal.4th 512
    , 526-527.)
    When a trial court “fails to rule, the objections are preserved on
    appeal.” (Id. at p. 532.) Evidentiary issues are reviewed for
    abuse of discretion. (People v. Waidla (2000) 
    22 Cal.4th 690
    ,
    717.) “‘[A]n erroneous evidentiary ruling requires reversal only if
    “there is a reasonable probability that a result more favorable to
    the appealing party would have been reached in the absence of
    the error.”’” (Serri v. Santa Clara University (2014) 
    226 Cal.App.4th 830
    , 857.)
    Appellant challenges only three specific evidentiary rulings
    on appeal. First, she mentions a photograph of Chon, which she
    12
    claims was unauthenticated, unrelated, and blurry. Appellant
    makes no argument as to how the photograph affected the
    outcome of the case. In the absence of such a showing, we decline
    to find that the trial court abused its discretion in implicitly
    overruling her objection.
    In a footnote, appellant challenges respondent’s statement
    in her declaration that respondent’s attorney hired two different
    private investigation firms who confirmed that the Torrance
    address where substitute service took place was appellant’s
    current address. Appellant’s objection to the investigative
    reports appears to be on the ground of relevance, since appellant
    argues that these firms did not confirm appellant’s address prior
    to March 2, 2014. However, given appellant’s failure to provide
    any alternative address for the time period surrounding service of
    process, the private investigation reports are relevant.9 The trial
    court did not abuse its discretion in considering the reports.
    9      Appellant fails to provide sufficient information, legal
    authority or argument as to why the investigation reports should
    have been excluded based on her other objections including
    hearsay, lack of foundation, and conclusory in nature. Due to
    appellant’s failure to provide meaningful argument, we treat
    these evidentiary issues as forfeited on appeal. (Blizzard Energy,
    Inc. v. Schaefers (2021) 
    71 Cal.App.5th 832
    , 856 [“‘It is the
    responsibility of the appellant . . . to support claims of error with
    meaningful argument and citation to authority. [Citations.]
    When[, as here, meaningful] legal argument with citation to
    authority is not furnished on a particular point, we may treat the
    point as forfeited . . . .’”])
    13
    DISPOSITION
    The orders and evidentiary rulings are affirmed.
    Respondent is awarded her costs of appeal.
    ________________________
    CHAVEZ, J.
    We concur:
    ________________________
    LUI, P. J.
    ________________________
    HOFFSTADT, J.
    14
    

Document Info

Docket Number: B310411

Filed Date: 5/18/2022

Precedential Status: Non-Precedential

Modified Date: 5/18/2022