3250 Wilshire Boulevard Partners v. Min CA2/1 ( 2020 )

Filed 11/24/20 3250 Wilshire Boulevard Partners v. Min CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
3250 WILSHIRE BOULEVARD B297993
PARTNERS,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BC212561)
v.
ANDREW MIN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Peter A. Hernandez, Judge. Affirmed.
Law Offices of E. Thomas Dunn, Jr., and E. Thomas Dunn,
Jr., for Defendant and Appellant.
Raiskin & Revitz and Steven J. Revitz for Plaintiff and
Respondent.
_______________________________
Defendant Andrew Min appeals from the trial court’s order
denying his motion to vacate a judgment entered in 2000 in favor
of his former landlord, plaintiff 3250 Wilshire Boulevard
Partners (landlord), as well as 2010 and 2019 renewals of the
judgment. We affirm.
BACKGROUND
I. Min’s Leases With Landlord
On June 25, 1998, Min and John Lee (collectively, tenants)
entered into a four-year agreement with landlord to lease office
space located at 3250 Wilshire Boulevard, Suite 1005 (the Suite
1005 lease). Paragraph 27 of the Suite 1005 lease provided
landlord could serve tenants with notices required or permitted
under that lease by mailing notices to tenants at the subject
property (hereafter referred to as Suite 1005).
According to Min, as set forth in his declaration in support
of the motion at issue on appeal, he moved out of Suite 1005 on
October 8, 1998, and thereafter had no further contact with
cotenant Lee. On October 15, 1998, Min entered into a separate,
three-year agreement with landlord to lease office space at a
different suite in the same building, 3250 Wilshire Boulevard,
Suite 601 (the Suite 601 lease). He remained bound by the Suite
1005 lease. He stated in his declaration that landlord “promised
to try and take [his] name off the old [Suite 1005] lease as [he]
used them [landlord] to rent another space in the same building.”
On June 16, 1999, Min sent a letter to landlord’s chief
financial officer (CFO), stating he had decided to terminate the
Suite 601 lease after previous discussions with landlord about it.
Regarding the Suite 1005 lease, Min explained in the same letter:
(1) he left Lee’s company in October 1998; (2) Lee’s attempt to
remove his name from the Suite 1005 lease was rejected by
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landlord in early 1999; (3) he was aware Lee was past due on the
rent for Suite 1005; and (4) landlord’s agent told him he would
“be ‘hit’ also” if Lee went into default. Min requested “further
help on the [Suite 1005] lease” of a nature not specified in the
letter.
On June 17, 1999, the day after Min sent the letter to
landlord, he and landlord signed an agreement terminating the
Suite 601 lease. They did not enter into a new agreement
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regarding the Suite 1005 lease. Landlord’s now-former CFO,
with whom Min negotiated the termination of the Suite 601
lease, stated in a declaration in support of landlord’s opposition to
the motion at issue on appeal that he “rejected Min’s request that
he be released from liability in connection with the Suite 1005
[l]ease.” The former CFO also stated in his declaration that Min
vacated Suite 601 on or before June 17, 1999, and he did not
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leave a forwarding address with landlord.
II. Landlord’s Unlawful Detainer Action Against Lee
and Min
On June 17, 1999, the same day Min entered into an
agreement with landlord terminating the Suite 601 Lease,
landlord issued a 3-day notice to pay rent or quit against Lee and
1
The Suite 1005 lease provided that any amendment to
any term of the lease required a written agreement signed by the
parties.
2
Min did not dispute below or on appeal that he failed to
provide a forwarding address to landlord when he moved out of
3250 Wilshire Boulevard. As set forth above, Min was still a
party to the active Suite 1005 lease when he moved out of the
building.
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Min under the Suite 1005 lease, stating they were $23,957.53 in
arrears on the rent. The same day, landlord served Lee and Min
by posting the 3-day notice at, and mailing the 3-day notice to,
Suite 1005. On June 25, 1999, landlord filed an unlawful
detainer action against Lee and Min, seeking possession of Suite
1005 and rent owed under the Suite 1005 lease.
On or about November 5, 1999, landlord filed an
application in the trial court for an order allowing it to serve Lee
and Min with the summons and unlawful detainer complaint by
posting the documents at, and mailing them to, Suite 1005,
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pursuant to Code of Civil Procedure section 415.45. In support
of landlord’s application, landlord’s attorney submitted a
declaration, explaining: (1) that landlord had unsuccessfully
attempted to personally serve Lee and Min at Suite 1005; (2) that
landlord did not know either Lee’s or Min’s residence address;
and (3) that Lee’s and Min’s last known address was Suite 1005.
Counsel attached to his declaration the process server’s
3
Code of Civil Procedure section 415.45 provides (and
provided at all times relevant to this action), in pertinent part:
“A summons in an action for unlawful detainer of real property
may be served by posting if upon affidavit it appears to the
satisfaction of the court in which the action is pending that the
party to be served cannot with reasonable diligence be served in
any manner specified in this article other than publication . . . .”
(Code Civ. Proc., § 415.45, subd. (a).) The statute further
provides: “The court shall order the summons to be posted on the
premises in a manner most likely to give actual notice to the
party to be served and direct that a copy of the summons and of
the complaint be forthwith mailed by certified mail to such party
at his last known address.” (Code Civ. Proc., § 415.45, subd. (b).)
Further statutory references are to the Code of Civil Procedure.
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declarations, detailing numerous unsuccessful attempts between
July 2 and July 22, 1999 to personally serve Lee and Min at the
locked office at Suite 1005, and stating it “appear[ed]” that Lee
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and Min were “evading service.” On November 5, 1999, the trial
court issued an order authorizing landlord to serve Lee and Min
with the summons and unlawful detainer complaint by posting
the documents at, and mailing them by certified mail to, Lee and
Min’s “last known address” at Suite 1005. On November 19,
1999, landlord filed proofs of service indicating that on November
10, 1999, it served Lee and Min with the summons and unlawful
detainer complaint in compliance with the trial court’s order (by
posting the documents at, and mailing them by certified mail to,
Suite 1005).
III. Money Judgment and Renewal of Judgment
On January 5, 2000, landlord served Lee and Min by mail
at Suite 1005 with a request for entry of default in the unlawful
detainer action. On February 16, 2000, the trial court entered
default against Lee and Min. On February 18, 2000, the court
entered a judgment for possession of Suite 1005 in favor of
landlord and against Lee and Min. And, on May 24, 2000, the
4
According to a later statement made by landlord’s office
manager for 3250 Wilshire Boulevard in her April 7, 2000
declaration in support of landlord’s application for default
judgment against Lee and Min, “[d]efendants . . . vacate[d]” Suite
1005 on July 27, 1999, six days before the process server first
attempted personal service of the summons and unlawful
detainer complaint on Lee and Min at Suite 1005. Presumably, it
was Lee who vacated Suite 1005 on July 27, 1999, as landlord
maintains Min moved out of the building on or before July 17,
1999, as set forth above, and Min does not state otherwise.
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court entered a money judgment in favor of landlord and against
Lee and Min in the amount of $30,115.56 (past due rent, plus
interest and attorney fees).
On October 13, 2000, Lee filed a motion to vacate the
default judgment, arguing he “was not given actual notice of the
summons and complaint,” and that he “learned of this matter on
or about May 15, 2000” (nine days before the trial court issued
the final judgment). Min did not join Lee’s motion or file a
motion of his own. On November 21, 2000, the trial court denied
Lee’s motion, concluding there was an “insufficient showing that
[Lee] was not in fact served, acted diligently to set [the] default
aside, or has a meritorious defense” to the unlawful detainer
action.
On January 27, 2010, landlord obtained a renewal of the
May 24, 2000 money judgment against Lee and Min. On
February 2, 2010, landlord served the trial court’s January 27,
2010 Notice of Renewal of Judgment on Lee and Min by mail at
3200 Wilshire Boulevard, Suite 1007. Landlord and Min agree
that this was an address where Lee moved sometime after he
moved out of Suite 1005, and not an address associated with Min.
After trying to locate Min for many years, on November 7,
2018, landlord found “a good business address for Min” through a
Westlaw search, as stated in landlord’s attorney’s declaration in
support of landlord’s opposition to the motion at issue on appeal.
Two days later, on November 9, 2018, landlord applied for a
second renewal of the May 24, 2000 money judgment. Also on
November 9, 2018, landlord served Min by mail, at the business
address for Min that landlord had found two days earlier, with a
memorandum of costs in the unlawful detainer action. In his
declaration in support of the motion at issue on appeal, Min
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acknowledged he received the memorandum of costs in November
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2018.
IV. Min’s Motion to Vacate the Money Judgment and
Renewals of Judgment
On February 22, 2018, Min filed a motion to vacate the
May 24, 2000 money judgment and the renewals of that
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judgment. He asserted in the motion that he was unaware of
the unlawful detainer action landlord filed in June 1999 until he
received the memorandum of costs more than 19 years later in
November 2018, because landlord never served him with the
summons and complaint or any document other than the
memorandum of costs. His legal arguments in support of his
request for vacation of the judgment and renewals of the
judgment were based on this assertion that landlord failed to
serve him with the summons and complaint. Landlord filed an
opposition to Min’s motion, arguing, among other things, that
service of the summons and complaint on Min complied with law
and the trial court’s November 5, 1999 order regarding such
service.
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The trial court did not issue its Notice of Renewal of
Judgment on landlord’s November 9, 2018 application for a
second renewal of the money judgment until February 28, 2019.
Thus, landlord did not serve Min with notice of the second
renewal in November 2018.
6
Although landlord had not yet served Min with notice of
the second renewal of the judgment—because the trial court had
not yet issued its February 28, 2019 Notice of Renewal of
Judgment—Min was aware of landlord’s November 9, 2018
application for a second renewal of the judgment, presumably
from a review of the court file.
7
On March 26, 2020, after hearing oral argument by the
parties, the trial court denied Min’s motion to vacate the May 24,
2000 judgment and renewals of the judgment.
On March 27, 2020, landlord served Min by mail, both at
his business address and at the address of his attorney of record
on the motion, with landlord’s January 27, 2010 application for
renewal of judgment and the trial court’s February 2, 2010 Notice
of Renewal of Judgment. On April 10, 2020, landlord served Min
by mail, both at his business address and at the address of his
attorney of record on the motion, with landlord’s November 9,
2018 application for renewal of judgment and the trial court’s
February 28, 2019 Notice of Renewal of Judgment.
DISCUSSION
On appeal, Min contends the trial court abused its
discretion in declining to vacate the renewals of the judgment
under section 683.170 on the ground landlord failed to serve him
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with the summons and unlawful detainer complaint.
“The judgment debtor bears the burden of proving, by a
preponderance of the evidence, that he or she is entitled to relief
under section 683.170. [Citations.] On appeal, we examine the
evidence in a light most favorable to the order under review and
the trial court’s ruling for an abuse of discretion.” (Fidelity
Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 199
(Fidelity).)
7
Min raised other legal arguments below in his motion to
vacate the judgment and renewals of the judgment. He has
abandoned those arguments on appeal by failing to mention them
in his appellate briefing.
8
Under section 683.170, a renewal of a money judgment
“may be vacated on any ground that would be a defense to an
action on the judgment . . . .” (§ 683.170, subd. (a).) A failure to
serve the summons and complaint is a proper ground to vacate
the renewal of a judgment under section 683.170, regardless of
whether the defendant can show he or she had a meritorious
defense to the underlying action. (Fidelity, supra, 89 Cal.App.4th
at pp. 200-203, 205-206.) A motion under section 683.170 must
be made “[n]ot later than 30 days after service of the notice of
renewal.” (§ 683.170, subd. (b).) A defendant’s failure to
challenge a default judgment within a reasonable time is not a
bar to a motion to vacate a renewal of a judgment. (Fidelity, at
pp. 203-204.) “A successful motion under section 683.170 does
not affect the validity of the default or the default judgment.
[Citation.] A successful motion under section 683.170 vacates
only the renewal of the judgment thereby precluding its extended
enforceability under section 683.120.” (Ibid.)
Min argues his motion under section 683.170 was not
untimely as he was not properly served with the trial court’s
January 27, 2010 Notice of Renewal of Judgment prior to the
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time he filed his motion. We agree. The 30-day period within
which to file a motion under section 683.170 does not begin to run
until service of a notice of renewal of the judgment. (Fidelity,
supra, 89 Cal.App.4th at p. 204.) On February 2, 2010, landlord
served the trial court’s January 27, 2010 Notice of Renewal of
8
As explained above, when Min filed his motion on
February 22, 2019, the trial court had not yet issued its February
28, 2019 Notice of Renewal of Judgment on landlord’s November
9, 2018 application for a second renewal of the judgment.
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Judgment by mail at Lee’s business address, an address not
associated with Min.
We disagree, however, with Min’s argument that he is
entitled to relief under section 683.170 due to defective service of
process of the summons and complaint. Min asserts that at the
time landlord served the unlawful detainer complaint in
November 1999, his last known address was Suite 601, and
landlord should have served him there, instead of at Suite 1005,
and landlord should have informed the trial court in November
1999 that Suite 601 was his last known address. Not so. Min
terminated the Suite 601 lease by written agreement with
landlord before he moved out of 3250 Wilshire Boulevard. He
vacated the building without providing a forwarding address to
landlord, knowing he was still a party to the active Suite 1005
lease because he and landlord had not signed an agreement
terminating that lease, and knowing there was back rent due
under that lease. Min simply walked away from the Suite 1005
lease, apparently hoping landlord would not catch up with him
because he did not provide a forwarding address. But Suite 1005
was not only Min’s last known address, it was his current address
under the active Suite 1005 lease to which he was still a party
and under which he agreed to receive notices at Suite 1005.
Complying with the trial court’s November 5, 1999 order,
landlord served Min with the summons and unlawful detainer
complaint by posting the documents at, and mailing the
documents by certified mail to, Suite 1005. The trial court did
not err in denying Min’s motion to vacate the renewal of the
judgment under section 683.170, as landlord properly served the
summons and unlawful detainer complaint on Min.
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We note that landlord’s improper service of the trial court’s
January 27, 2010 Notice of Renewal of Judgment did not
invalidate the renewal of the judgment. It merely prohibited any
efforts by landlord to enforce the judgment until proper service
was made. (See Code Civ. Proc., § 683.160, subd. (b).) As set
forth above, after the trial court denied Min’s motion, landlord
properly served the trial court’s January 27, 2010 Notice of
Renewal of Judgment, as well as the trial court’s February 28,
2019 Notice of Renewal of Judgment, which was issued six days
after Min filed his motion. Min does not dispute that these
documents were properly served.
DISPOSITION
The order is affirmed. Respondent is entitled to recover
costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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