Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG05233003
NEEDHAM, J.
YuQuian Chen contends the trial court erred in denying his motion to set aside a default and default judgment. His arguments have no merit, and we will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
On September 8, 2005, respondent Sonny Moy (Moy) filed a complaint against YuQian Chen (Chen) and Bob Yirong Deng (Deng) for claims stemming from Moy’s purported interest in Pacific Auto Repair Center, Inc., an S-corporation. The complaint sought dissolution of the S-corporation, an accounting, and damages of not less than $100,000 for breach of contract, fraud, misrepresentation, wrongful termination, and breach of fiduciary duty.
A proof of service, filed on October 25, 2005, represented that Chen was personally served with the summons and complaint at 4:39 p.m. on October 19, 2005, at 2475 Ascot Way, Union City, California (Ascot Way). The proof of service was signed under penalty of perjury by R.S. Deplush.
On November 16, 2005, the clerk of the court received two handwritten letters. One of them purported to be from Juliet MacColl, stating she and her family had lived at the Ascot Way address for 14 months, “this document was left with my fourteen year old daughter,” and MacColl and her family had “no relationship or knowledge of [the] parties” mentioned in the document. MacColl’s letter apparently pertained to the documents purportedly served on Chen. The other letter asserted that someone dropped off a document at a house in Castro Valley, but the addressee did not live there. This letter pertained to service upon Deng.
Chen and Deng did not respond to the complaint within the statutory time period, and a default was entered against them on February 6, 2006.
Moy requested a default judgment and served the request on Chen by mail to the Ascot Way address, as well as a Stockton address and an Elk Grove address. Deng was served as well.
A hearing on Moy’s request for a default judgment occurred on November 30, 2006. Chen and Deng did not appear. Moy, appearing through counsel, presented evidence in support of his claim for damages.
On December 5, 2006, the court issued a default judgment against Chen and Deng for $100,000. A copy of the default judgment was served on Chen at an Elk Grove address and a Stockton address on December 8, 2006.
In May 2007, Moy filed a separate complaint for fraudulent transfer against Chen and his wife, attaching a copy of the December 2006 default judgment. Chen was served with the complaint and summons by mail in September 2007.
On October 18, 2007, eight months after entry of the default judgment, Chen filed a motion to set aside the default and default judgment under Code of Civil Procedure section 473, subdivision (d), on the grounds he was never served with the summons and complaint. In support of his motion, Chen submitted a declaration denying he was served and asserting he did not live at the Ascot Way address at the time. Declarations of Simon Hung and Wei Chen averred that Chen lived in Elk Grove and worked in Stockton, and a declaration from MacColl averred that she was Chen’s tenant, she lived at the Ascot Way address, and Chen did not. Chen also submitted his proposed answer to the complaint and a proposed cross-complaint. Moy opposed Chen’s motion and provided a declaration from the process server, who declared she served Chen.
After a hearing on December 27, 2007, the court denied Chen’s motion on the grounds he was personally served and, in any event, his motion was untimely. The court subsequently corrected a typographical error in the order and issued a new order nunc pro tunc.
This appeal followed.
II. DISCUSSION
As mentioned, Chen brought his motion for relief from the default and default judgment under Code of Civil Procedure section 473, subdivision (d), which reads: “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Italics added.) A judgment is void if the defendant was never served with the summons and complaint. (See Code Civ. Proc., § 410.50, subd. (a).)
We review the denial of a motion to vacate a default and set aside a judgment under Code of Civil Procedure section 473 for an abuse of discretion. (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249 (Strathvale Holdings).)
A. Personal Service Upon Chen
Explaining its ruling that Chen had been properly served, the trial court stated: “The proof of service executed at the time of service by the process server, Sevela Deplush, under penalty of perjury shows personal service. The declaration of Deplush avers that her practice is to confirm the identity of persons before they are personally served and that she does not leave the summons and complaint with minors. The declarations of Wei Chen and Simon Hung submitted by Defendant do not show personal knowledge of Defendant Chen’s identity at the time of service. The declaration of Juliet MacColl states that Defendant Chen is her landlord, which is contrary to the letter she mailed to the Court on November 12, 2005, in which she stated that she had no relationship or knowledge of Defendant Chen. The falsity of the statements in the November 12, 2005 letter[] casts doubt on the veracity of her most recent declaration. In addition, MacColl does not claim personal knowledge of the events surrounding service on Defendant Chen. The declaration of Defendant Chen does not persuade the Court that the declaration of the process server was false. He asserts that he would have timely defended against Plaintiff’s claims if he [had] known of the lawsuit, but he received notice of the judgment in December 2006 and did not take any action until after he was served with Plaintiff’s lawsuit to set aside [a] fraudulent transfer.” At the hearing, the court also opined that Chen was raising the issue of service because his assets were going to be attached.
We find no abuse of discretion in the trial court’s decision. The proof of service represents that “YuQian Chen” was personally served with a copy of the summons and complaint at 4:39 p.m. on October 19, 2005, at the Ascot Way address. The filing of a proof of service creates a rebuttable presumption that service was proper if the proof of service complies with all statutory requirements. (M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 770 (Lowenstein), disapproved on other grounds, Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 255.) Although Chen argues that service was never made, there is no indication that the proof of service, on its face, lacks compliance with the statutory requirements.
On this basis, the burden shifted to Chen to rebut the presumption of valid service. (Lowenstein, supra, 80 Cal.App.3d at p. 770.) But whether we applied this presumption or not, we would conclude that the trial court did not abuse its discretion in denying Chen’s motion, in light of the evidence presented by the parties.
Moy’s process server admitted in her declaration that she could not remember the “exact details” of the service more than two years earlier, since she had “personally served countless persons.” Nonetheless, she did not recall a young girl being present when she served Chen, and she “would never leave court documents with a minor.” In addition, the process server declared: “I would never leave documents at a place unless the person to be served was there,” and she “always verif[ied]” the identity of the person to be served by asking for the name of the individual before serving them. On that basis, the process server was sure she had verified Chen’s identity before serving him. Furthermore, the process server stated, she would not have executed a proof of service stating she personally served Chen unless she in fact had identified and served him, and therefore the statements in the proof of service were true and accurate. This evidence adequately supported the court’s conclusion that Chen was served as indicated in the proof of service.
Chen’s evidence did nothing to compel a different result. In his declaration, Chen denied being served in October 2005 and claimed he did not live in Union City at the time. In paragraph 2, he asserted: “During October 2005, I was working in Stockton and living at 2704 Hinton Circle, Elk Grove, California, and did not live at 2475 Ascot Way Union City.” In paragraph 4, he stated: “I lived in Elk Grove on October 19, 2005 and worked at an auto repair shop in Stockton, California. I did not live at Union City during this period. I moved from Union City during September 1, 2005. The house located at 2475 Ascot Way in Union City was rented to a tenant, Juliet MacColl.”
The fact that Chen did not live or work in Union City does not mean he was not served at the Ascot Way address. At the time of service, Chen was the owner and landlord of the property located at Ascot Way. Given this relationship, there was a reason for Chen to be there, and it was thus rational to conclude he was present at the time and place noted on the proof of service, even if he did not live there.
The declarations of Wei Chen and Simon Hung (two of Chen’s customers) stated that Chen worked in Stockton, lived in Elk Grove, and did not live in Union City during October 2005. Those assertions, however, do not compel the conclusion that Chen was not at the Ascot Way address at the time of service. Nor do the declarations lay a foundation for any personal knowledge regarding Chen’s whereabouts, let alone on the day he was served.
MacColl’s declaration is also of little assistance to Chen. MacColl claimed that documents were left at her home with her minor daughter, but she did not provide any details as to who left the documents, state that she actually witnessed the event, or otherwise establish personal knowledge. In addition, MacColl declared that Chen was not living at the Ascot Way address on the date of service, but she did not deny he was there at the time he was purportedly served.
In fact, MacColl’s declaration brings into question her credibility. As Exhibit A to her declaration, MacColl attached a copy of the letter she wrote to the Alameda County Superior Court on November 12, 2005. The letter claimed that she did not know the addressee (Chen). In her declaration, however, she asserted that “Mr. Chen is my landlord, I am his tenant.” Her claim in her declaration that Chen was her landlord, and that he did not live at the address, contradicted her claim in her letter that she had no relationship or knowledge of Chen. As the trial court pointed out, the falsity of her statement in the letter casts doubt on the veracity of her declaration.
Chen purports to explain the discrepancy between MacColl’s letter and her declaration as follows: “As is common in the Asian community, people with Asian names often use Anglo-names once they arrive in the United States. Mr. Chen goes by the name of King Chen. The tenant had known him as King, not YuQian. This was pointed out to the Trial Court during the hearing on the Motion to Set Aside the Default.” Chen’s argument is unavailing. First, besides the fact that his brief provides no citation to the record for this proposition, the reporter’s transcript of the hearing establishes that he provided no evidence on this point, other than to offer to show the court Chen’s purported business card. Second, MacColl affirmed in her declaration that the statements in her letter were true. Thus, in her declaration she insisted both that it was true she did not know YuQuian Chen and that it was true YuQuian Chen was her landlord. This inconsistency not only casts doubt on her credibility, but on Chen’s explanation as well. While there may be different inferences to draw from the evidence, substantial evidence supports the trial court’s credibility determination.
We also note that the context of MacColl’s claim is rather remarkable. Not only did MacColl write to the court clerk to disclaim any knowledge of the person served at her home, someone else also wrote to the clerk to disclaim any knowledge of the other defendant who was served in Castro Valley. The trial court’s credibility determination is thus further supported by the curious fact that two individuals, in two different cities, chose not to inform the party on whose behalf the defendants were served, but instead wrote letters addressed “to whom it may concern” at the court clerk’s office, which letters were received by the clerk on the very same day and collectively challenged the veracity of service on all of the defendants in the case. Whether the oddity of this circumstance is considered or not, ample evidence supported the trial court’s finding that Chen was personally served with the complaint and summons in October 2005.
Chen’s arguments to the contrary are untenable. He contends he provided substantial evidence to support his claim that he was not served. The question on appeal, however, is whether there was substantial evidence to support the trial court’s determination, not whether there was evidence to support Chen’s claim. For reasons we have stated, substantial evidence supported the trial court’s factual determinations, and the court did not abuse its discretion.
Chen relies on Caldwell v. Methodist Hospital (1994) 24 Cal.App.4th 1521, 1524, arguing that courts must resolve all doubts in favor of the party seeking relief because the law favors trial on the merits. The appellate court in Caldwell, however, affirmed the trial court’s refusal to set aside a dismissal. (Id. at p. 1525.) Similarly, while we are mindful of the policy favoring adjudication on the merits, we conclude that Chen failed to establish error in the trial court’s denial of his motion to set aside the default and default judgment.
B. Timeliness
Chen brought his motion under Code of Civil Procedure section 473, subdivision (d), which provides relief from a void judgment or order. Chen argued the default and default judgment were void for lack of personal jurisdiction, due to the lack of personal service. The purported defect does not appear in the record: to the contrary, the proof of service indicates that Chen was personally served with the summons and complaint.
The deadline to bring a motion under section 473, subdivision (d) for relief from a purportedly void default judgment, which appears to be valid on its face but is allegedly void due to improper service, is the same as the deadline for bringing a motion for relief under Code of Civil Procedure section 473.5, subdivision (a) for lack of notice. (Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1116, 1124 (Rogers).) Thus, the motion must be brought within the earlier of two years from entry of the default judgment or 180 days from notice of entry. (Ibid; see Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 301, fn. 3 (Gibble).)
Section 473.5, subdivision (a) applies where service was properly made but the defendant nonetheless did not learn of the lawsuit in time to respond to the complaint, as might occur where notice was by publication. The subdivision reads: “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall 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.” (Italics added.)
Here, the default judgment against Chen was entered on December 5, 2006, but he was served with written notice of entry of default on December 13, 2006, at his Hinton Circle address, where he undisputedly lived since November 1, 2006. Two years from entry of default judgment would be December 5, 2008, but 180 days after notice of entry would be June 2007. The deadline for filing the motion to set aside the default and default judgment was thus in June 2007, and Chen’s motion, filed in October 2007, was untimely.
In explaining its decision that Chen’s motion was untimely, the court aptly stated: “The judgment is not void on its face. Thus, Defendant Chen had a reasonable period of time not to exceed 2 years [after] entry of default judgment or 180 days after service of notice of entry of default judgment, whichever is shorter. [Citation.] Defendant Chen received notice of the judgment by mail in December 2006, but did not move for relief until October 18, 2007. This was not within the 180-day deadline after service of notice and Defendant Chen did not seek relief within a reasonable period of time.”
Chen argues that he had two years to bring his motion, quoting the following sentence from Gibble: “A motion for relief from a default judgment which is alleged to be void for lack of valid service of process may be brought within two years after entry of the judgment. [Citations.]” (Gibble, supra, 67 Cal.App.4th at p. 301, fn.3.) In Gibble, however, the two-year limitations period applied because the defendant was not served with notice of entry of the default and default judgment. (Id. at p. 299.) Here, Chen was so served, and the 180-day period applied.
Chen next contends he could challenge the judgment at any time, because it is void for lack of service. For this proposition, he relies on Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145 (Renoir), but his reliance is misplaced. In Renoir, plaintiffs sought to enforce a foreign judgment in California by filing a petition in a California court. The record in the California case indicated that no summons was ever issued. (Id. at p. 1148.) A proof of service showed the defendants were served with the petition and related documents—but not the summons. (Ibid.) The court held that the failure to serve the summons precluded personal jurisdiction, the judgment was void, and it could be set aside at any time. (Id. at p. 1154.) But unlike the matter before us, the jurisdictional deficiency in Renoir was apparent from the face of the record: “the California judgment is void on its face because the defect—the failure to serve a summons—is ascertainable from the record.” (Ibid.) Here, by contrast, the failure to serve the summons was not ascertainable from the record. In that instance, the two-year or 180-day deadline applies. (Rogers, supra, 216 Cal.App.3d at p. 1124.)
Also distinguishable in this regard (although not cited by the parties) is Strathvale Holdings, supra, 126 Cal.App.4th at p. 1249. There, the court held that a default and default judgment, attacked on the ground they were void due to lack of personal jurisdiction, may be attacked at any time. The claim of jurisdictional deficiency in Strathvale Holdings, however, was based not only on a contention of invalid service of process, but also on an argument that the defendants lacked the requisite minimum contacts with California for jurisdiction to be maintained. (Id. at p. 1247.) Indeed, the appellate court in Strathvale Holdings addressed only the minimum contacts issue, not the validity of service. (Id. at pp. 1250-1251.) Nor did it address Rogers or other cases holding that a claim of invalid service must be brought within 180 days of notice of entry of judgment. Nothing in Strathvale Holdings is contrary to our ruling in this case.
Lastly, Chen argues that the default judgment should be set aside because Moy did not recover everything he sought in his complaint. Chen points out that the default judgment, although awarding Moy $100,000, also indicated the defendants did not perpetrate wrongful termination or fraud. From this Chen argues: “We have a Plaintiff, Mr. Moy, that was found by the Trial Court to be lying about the nature and type of obligations he contended was owing to him. He said there was a fraud; he said there was a wrongful termination. The Court decided there was no fraud and no wrongful termination. This means he was dishonest. [¶] Under these circumstances the Trial Court should have taken steps toward substantial justice, and should have adhered to the liberal policy of allowing actions to be presented on the merits, especially here where a large part of the action was determined by the Trial Court to be a lie.”
Chen’s argument is rather ironic, since it was actually Chen who was determined by the trial court to lack credibility in his assertion that he was never served. In any event, while the trial court concluded that Moy did not present sufficient evidence to prove wrongful termination or fraud, there was no finding that Moy was in any way “dishonest” or perpetrating a “lie” in regard to his allegations. Nor does Chen explain why a failure to prove substantive allegations at a default judgment prove-up hearing should entitle the defendant to reopen the case months later and litigate the issues again.
III. DISPOSITION
The judgment is affirmed.
We concur. JONES, P. J., DONDERO, J.
Judge of the Superior Court of San Francisco City and County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.