Jung v. Kim CA2/5 ( 2022 )

Filed 5/18/22 Jung v. Kim CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
SAM S. JUNG et al., B307413
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No.
v. BC687833)
JOON W. KIM et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Rupert A. Byrdsong, Judge. Affirmed.
Daniel E. Park Law Corporation and Daniel E. Park for
Defendants and Appellants.
Katz Appellate Law and Paul J. Katz for Plaintiffs and
Respondents.
Sarah Woo (Woo) and Sam S. Jung (Jung) (collectively,
plaintiffs) obtained a default judgment against Joon W. Kim
(Kim) and C4 Capital Partners, L.P. (C4) (collectively,
defendants). We consider whether the trial court correctly denied
defendants’ motion, filed well over a year later, to set aside the
default judgment on defective service grounds.
I. BACKGROUND
A. The Lawsuit
Kim was Woo’s financial advisor. During the spring of
2012, Kim allegedly persuaded Woo to invest money in C4, a
limited partnership for which Kim is a general partner and the
agent for service of process. Woo allegedly invested nearly
$400,000 in C4 and then transferred $332,300 of that investment
to Jung in exchange for a promissory note. C4 allegedly did not
report taxes during 2014, 2015, and 2016, and defendants
allegedly failed to provide Jung with a Schedule K (a document
used to report a partner’s share of the partnership earnings,
losses, deductions, and credits) to file with his state and federal
tax returns. In December 2017, plaintiffs filed an initial
complaint against defendants for breach of fiduciary duty and
failure to provide financial information.
B. Service of the First Amended Complaint
Plaintiffs maintain they served defendants with the
original complaint via substituted service at 1148 Iguala Street,
Montebello, CA 90640 (the “Montebello address”), which is both a
home address and C4’s business address per California records.
Plaintiffs later filed a first amended complaint (the operative
2
complaint) in March 2018, and it is service of this document that
is at issue in this appeal.1
Plaintiffs attempted to serve the operative complaint on
defendants at the Montebello address, but they were unsuccessful
on four occasions. Plaintiffs then found another address for Kim
on Almaden Boulevard in San Jose (the “San Jose address”),
where he occupies one unit of a larger building, and verified
Kim’s association with the unit via United States Postal Service
records.
Plaintiffs attempted to serve defendants at the San Jose
address 13 times. After three occasions on which a process server
attempted to gain access to the lobby unsuccessfully because the
door required a code to enter, a process server gained entry in
early April 2018 and a “security guard” (as described in the
process server’s declaration regarding service) refused to provide
any information about whether Kim lived in the building. (This
service attempt was made before the address was confirmed by
the United States Postal Service.) Process servers thereafter
1
Plaintiffs’ opening brief does not argue service of the
original complaint was defective. After defendants’ brief
highlighted the absence of any such argument, plaintiffs in their
reply brief contend “[t]o the extent that service of the original
complaint is relevant, service of this complaint was ineffective
and did not provide Kim with actual knowledge.” By waiting to
raise any issue with service of the original complaint until the
reply brief, the point is waived. (Habitat & Watershed Caretakers
v. City of Santa Cruz (2013) 213 Cal.App.4th 1277, 1292, fn. 6.)
We accordingly analyze only whether the first amended
complaint was properly served (as that is the only predicate for
defendants’ request to set aside the default judgment).
3
made four more attempts at service in early May 2018 and were
unable to gain access. Then, on May 10, 2018, a process server
gained access to the lobby of the San Jose address and was
informed by a “security guard” that visitors are not allowed to
remain in the building unless the guard gets approval from a
resident. The guard then called Kim’s unit, and when there was
no answer, the guard agreed (per the process server’s declaration
of service) “to accept the service on [Kim’s] behalf as [an]
authorized person.” Further attempts at service were still made,
however. Three times a process server attempted service but was
not able to gain access through the secured lobby doors. Finally,
on May 14, 2018, a process server gained entry to the lobby and
spoke with a concierge “Brianda A.” She tried to contact Kim’s
apartment, and when she was unsuccessful, said (per the process
server’s declaration of service) that “she will accept service on
behalf of the occupant [Kim].” Once the concierge accepted
service, the process server thereafter mailed a copy of the
summons and operative complaint to Kim at the same address.
C. Default, and Defendants’ Attempt to Set It Aside
Defendants did not answer or otherwise respond to the
operative complaint within the time provided by law to do so. In
July 2018, plaintiffs asked the trial court clerk to enter
defendants’ default, and the clerk did so (after plaintiffs cured a
minor problem regarding the names of defendants). The trial
court thereafter entered, on September 6, 2018, a default
judgment in the amount of $704,694.28 (roughly $10,000 of which
was attributable to costs and attorney fees).
Roughly a year and a half later, on April 23, 2020,
defendants filed a motion to set aside the entry of default and the
4
default judgment. The motion contended the judgment was void
because the summons and operative complaint were improperly
served. Defendants contended they never received the summons
and complaint by any means and the concierge at the San Jose
address was not statutorily authorized, or authorized in fact, to
accept service of the documents (which, defendants contended,
she never delivered to them). Defendants’ motion and an
accompanying declaration from Kim asserted Kim was in South
Korea at the time of service and defendants first became aware of
plaintiffs’ lawsuit and the default judgment in April 2020—after
Kim “just recently” returned from South Korea and learned a
“bank levy was initiated on his and his spouse’s bank accounts.”
The trial court, at an unreported hearing, denied
defendants’ motion to set aside the entry of default and default
judgment. A minute order memorializing the hearing states the
court heard argument, the court and counsel conferred regarding
a possible stipulation to set aside the default judgment, and (with
the parties unable to reach a stipulation) the court denied the
motion “on the grounds set forth in the opposition papers.”
II. DISCUSSION
To set aside the default judgment at such a late date,
defendants were required to show service of the operative
complaint was defective such that the judgment was void.
(Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th
1009, 1021 (Pittman).) The trial court correctly concluded that
showing had not been made. After diligently attempting personal
service, plaintiffs’ process server appropriately resorted to
substitute service and validly completed that method of service
by (twice) delivering a copy of the operative complaint to the
5
concierge at Kim’s address and then mailing a copy of the
complaint to the same location. Under Bein v. Brechtel-Jochim
Group, Inc. (1992) 6 Cal.App.4th 1387 (Bein), which we will
proceed to discuss in greater detail, that sufficed.
To set aside the judgment against them as void (not merely
voidable) under Code of Civil Procedure section 473, subdivision
(d), defendants must make a proper showing according to a
restricted procedure. A court may consider only evidence
appearing on the so-called “judgment roll,” which includes the
summons, the accompanying affidavit or proof of service, the
complaint, the request for entry of default and the entry of the
same, and the judgment. (Pittman, supra, 20 Cal.App.5th at
1020-1021; OC Interior Services, LLC v. Nationstar Mortgage,
LLC (2017) 7 Cal.App.5th 1318, 1328, fn. 2; see also Code Civ.
Proc., § 670, subd. (a).) We keep these limits in mind in assessing
defendants’ claim that the judgment is void for defective service.
The Code of Civil Procedure permits substitute service of a
complaint on an individual, after unsuccessful attempts at
personal service are made, by “leaving a copy of the summons
and complaint at the person’s dwelling house, usual place of
abode, usual place of business, or usual mailing address . . . in
the presence of a competent member of the household or a person
apparently in charge . . . at least 18 years of age, who shall be
informed of the contents thereof, and by thereafter mailing a copy
of the summons and of the complaint by first-class mail, postage
prepaid to the person to be served at the place where a copy of
the summons and complaint were left.” (Code Civ.
Proc., § 415.20, subd. (b).) Service on a limited partnership is
authorized in similar circumstances by “leaving a copy of the
summons and complaint during usual office hours in [a general
6
partner’s or the agent for service of process’s] office or, if no
physical address is known, at his or her usual mailing
address . . . with the person who is apparently in charge thereof,
and by thereafter mailing a copy of the summons and complaint
by first-class mail, postage prepaid to the person to be served at
the place where a copy of the summons and complaint were left.”
(Code Civ. Proc., §§ 415.20, subd. (a); 416.40, subd. (a).)
The Court of Appeal held in Bein that substitute service of
a lawsuit on an individual and company was appropriately
effected when the process server diligently attempted personal
service and eventually left a copy of the complaint and summons
with the guard of a gated community that included the
defendants’ address. (Id. at 1392, 1394-1395.) Factually, this is
what happened in Bein: a process server attempted to serve the
defendants personally on multiple occasions, was denied access
into the gated community by the guard, handed the guard the
paperwork to effectuate substituted service (which the guard
threw on the ground but later retrieved when the process server
drove off), and subsequently mailed the complaint and summons
to the defendants’ address. (Id. at 1390-1391.) The Court of
Appeal, explaining its holding, reasoned the guard appropriately
qualified as a competent member of the household and someone
apparently in charge (as described in the Code of Civil Procedure
service statutes) because “[l]itigants have the right to choose
their abodes; they do not have the right to control who may sue or
serve them by denying them physical access.” (Bein, supra, 6
Cal.App.4th at 1393; see also ibid. [citing with approval New
York precedent holding substitute service on an apartment
building doorman was statutorily sufficient].)
7
Here, the sources a court may properly consult when
determining whether a judgment is void reveal no defect in
service. Plaintiffs’ process server made plenty of attempts at
personal service before resorting to substituted service. (Bein,
supra, 6 Cal.App.4th at 1391-1392.) The concierge at the San
Jose Address, much like the gated community guard in Bein,
qualifies under the pertinent statutes as a person apparently in
charge. And there is no dispute, on the record we may consider,
that a copy of the operative complaint and summons was mailed
to the same address.
The specific counterarguments defendants offer are all
unpersuasive. Defendants argue substitute service on the
partnership could be made only at the partnership’s offices under
Code of Civil Procedure section 415.20, but that disregards the
language in the statute that permits service at an agent for
service of process’s “usual mailing address” when a physical
address is unknown. Defendants argue Bein is distinguishable
because the guard in that case had been authorized to control
access to the defendants and their residence whereas here Kim
never authorized the concierge to control access to him. Kim’s
assertions, however, are not part of the record a court can
consider when deciding whether a judgment is void, and even if
they were, defendants still misread Bein. It was the defendants’
decision to live in a guarded gated community in that case that
supplied the “authorization” Bein discusses (not any actual
person-to-person delegation of authority) (Bein, supra, 6
Cal.App.4th at 1393), and that same authorization is present
here by virtue of Kim’s decision to reside in a controlled access
building. Finally, defendants argue the guard in Bein “actively
denied the process server access” and they claim there are no
8
similar facts here. To the contrary, the process server’s
declaration indicates access to the building for “visitors” was
permitted only with a resident’s permission—which was never
forthcoming in the unanswered calls placed to Kim’s unit.
DISPOSITION
The judgment is affirmed. Plaintiffs are awarded their
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
9