Pak v. Chon CA2/2

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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):
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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,
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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.)
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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
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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.)
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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 . . . .’”])
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DISPOSITION
The orders and evidentiary rulings are affirmed.
Respondent is awarded her costs of appeal.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
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