Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court for the County of Los Angeles. Super. Ct. No. KC047733, Abraham Khan, Judge.
Law Offices of Ricky W. Poon and Ricky W. Poon, for Defendants and Appellants.
Law Offices of Steve Luan and Steve Luan, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Defendants and appellants Ting Ying Yao and Eric K.W. Yao (defendants) appeal from the default judgment entered against them and in favor of plaintiff and respondent Li Yin Kung (plaintiff). Defendants contend: (1) they were not served with summons and complaint; (2) they were not served with the requisite statement of damages; (3) default was premature; (4) the trial court abused its discretion in denying their motion for relief from default; and (5) there was no evidence to support the claim against Eric Yao. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
According to the verified complaint, from August through October 2002, defendants borrowed a total of $17,620 from plaintiff. Subsequently, defendant Ting Ying Yao tendered the following checks to plaintiff:
· check No. 501 in the amount of $5,000, dated October 1, 2003;
· check No. 502 in the amount of $2,000, dated December 1, 2005;
· check No. 503 in the amount of $2,000, dated December 1, 2005;
· check No. 504 in the amount of $2,000, dated December 1, 2005;
· check No. 505 in the amount of $2,000, dated December 1, 2005;
· check No. 506 in the amount of $2,000, dated December 1, 2005;
· check No. 507 in the amount of $2,000, dated December 1, 2005.
The printed address on each check was 18552 Vantage Pointe Drive, Rowland Heights, California. All of the checks were dishonored by the bank for insufficient funds.
On September 15, 2005, plaintiff’s attorney wrote to defendants at the Vantage Pointe address demanding that they repay plaintiff the $17,620 they had borrowed. On February 16, 2006, plaintiff’s counsel sent to Ting Ying Yao, by certified mail, at the Vantage Pointe address, notice of plaintiff’s intent to seek Civil Code section 1719 (§ 1719) damages for the returned checks. According to the certified mail receipt, the letter was refused.
Meanwhile, on January 27, 2006, plaintiff filed a verified complaint alleging causes of action for breach of contract, fraud and violation of section 1719. The complaint sought damages in the amount of $17,620, plus punitive and exemplary damages pursuant to section 1719. Plaintiff subsequently filed a proof of service in which a registered process server averred that he personally served Ting Yin Yao and Eric Yao with the summons and complaint at 2:30 p.m. on February 3, 2006, at 515 Fullerton Road in Rowland Heights, California.
Apparently, this was the place of employment of both defendants.
On March 16, 2006, plaintiff filed and served defendants by mail at the Fullerton Road address with a request for entry of default. The request was rejected by the clerk because plaintiff had failed to serve the requisite statement of damages (see Code Civ. Proc., § 425.115). On May 17, 2006, the registered process server personally served defendants, at the Fullerton Road address, with a notice to defendant regarding statement of damages. On June 9, 2006, plaintiff filed and served defendants by mail at the Fullerton Road address with a second request for entry of default judgment. Defendants’ defaults were entered on June 14, 2006. No judgment was entered at that time. The same day, plaintiff filed with the court a document entitled “notice to defendants regarding statement of damages pursuant to § 425.115 of Code of Civil Procedure; statement of damages pursuant to § 3294 of Civil Code.” A copy of the letter dated February 16, 2006, the enclosed section 1719 notices and the certified mail receipt indicating that the letter had been refused, were attached as an exhibit.
All future undesignated statutory references are to the Code of Civil Procedure.
A minute order reflects that attorney Ricky Poon appeared on behalf of Eric Yao at a case management conference on June 16, 2006, notice of which had been served by mail on defendants at the Fullerton Road address; Ting Ying Yao did not appear. According to the minute order, “As of today, default has not been entered as to either defendants. [¶] Counsel for defendant indicates that since default is not entered, he will be filing an answer.” That day, unverified answers to the verified complaint were filed by Eric Yao and Ting Ying Yao. Ting Ying Yao’s answer indicated that she was in propria persona and identified her address as 1665 East Edgecomb Street in Covina, California; Eric Yao’s answer was filed on his behalf by attorney Ricky Poon. Meanwhile, the court also ordered plaintiff’s counsel to give defendants notice of a July 20, 2006, order to show cause re status. Plaintiff’s counsel gave the court ordered notice to Poon, apparently on behalf of both defendants.
The judge at the status conference was apparently unaware that, in fact, defaults had already been entered.
On July 19, 2006, Poon filed on behalf of both defendants a joint motion to vacate the default pursuant to section 473, subdivision (b). In their declarations, defendants averred they had been divorced for several years and had no financial relationship since their divorce; after learning that a default had been entered in this matter, they retained counsel. Ting Ying Yao averred that she had never resided or worked at the Fullerton Road address and was therefore not served with summons or complaint on February 3, 2006. Eric Yao averred that after he received the summons and complaint, he referred the matter to his ex-wife because he mistakenly believed that he had nothing to do with his ex-wife’s debts.
At the hearing on the motion, plaintiff’s counsel argued that both defendants worked at the Fullerton address, even after their divorce.
According to a notice of continuance of the hearing from July 20 to August 31, 2006, defendants were given until August 18, 2006, to file an amended motion to set aside the defaults. Defendants subsequently filed separate amended motions, although both were represented by Poon. In hers, Ting Ying Yao averred that she had not been properly served and that all her debts had been discharged in a 2004 Chapter 7 bankruptcy. She attached a notice of discharge of debtor in Chapter 7 bankruptcy as an exhibit to the motion. In his, Eric Yao averred that he could not recall whether he was personally served with summons and complaint, but when he received notice of the request for entry of default he assumed Tin Ying Yao would take care of the matter.
At the hearing, the trial court’s written tentative ruling was to deny the motion for relief from default “due to lack of showing of excusable neglect, and on the ground that Ting Yao’s claim for lack of notice is not credible under the circumstances[.]” Defendants’ attorney argued that the conflict in the evidence regarding service warranted an evidentiary hearing. After taking the matter under submission, the trial court adopted the tentative as its final ruling finding defendants “simply not credible.” In this respect, the trial court observed that the fact that the bankruptcy occurred in 2004, but Ting Ying Yao wrote the bad checks in 2005, discredited her claim that the original debt was inadvertently omitted from the bankruptcy. Default judgment was entered in favor of plaintiff for $17,620 against defendants jointly and severally, plus an additional $10,500 against Ting Ying Yao pursuant to section 1719; plaintiff’s request for attorney fees was denied. Notice of entry was served on defendants on September 25, 2006. Defendants filed a timely notice of appeal.
DISCUSSION
A. Substantial Evidence Supports the Trial Court’s Finding that Defendants were Properly Served
Defendants contend the trial court erred in entering default judgment against them because “it appears that there was a willful failure to give the required service or that willful false affidavits of service were filed.” We disagree.
“A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. . . .” (§ 415.10.) According to section 684.220, subdivision (b), proof of service made pursuant to section 415.10 “may be made by affidavit of the person making the service showing the time, place, and manner of service and the facts showing that the service was made in accordance with the applicable statutory provisions. The affidavit shall recite or in other manner show the name of the person to whom the papers served were delivered and, if appropriate, the title of the person or the capacity in which the person was served.” Evidence Code section 647 provides that a registered process server’s declaration of services establishes a presumption, affecting the burden of producing evidence, of the facts stated in the declaration. (See also Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795 [filing of proof of service that complies with the applicable statutory requirements creates a rebuttable presumption of proper service].)
“When an issue is tried on affidavits, the rule on appeal is that those affidavits favoring the contention of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom, and where there is a substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed.” (Griffith Co. v. San Diego Col. for Women (1955) 45 Cal.2d 501, 508.)
Here, the proof of service of summons and complaint filed by plaintiff on March 3, 2006, included the declaration of a registered process server averring that he personally served both defendants at the Fullerton Road address on February 3, 2006. Because of the statutory presumption, defendants were thus required to produce evidence that they were not served.
1. Ting Ying Yao
In her declaration filed in support of the original motion to vacate, Ting Ying Yao averred that she had never worked or resided at the Fullerton Road address “and, therefore, I was never served on 2/3/06.” She reiterated this statement in her declaration filed in support of the amended motion. The trial court resolved the conflict between the process server’s and Ting Ting Yao’s averments against Ting Ying Yao, finding her claim that she was not personally served “not credible under the circumstances.” Since there is substantial evidence to support the trial court’s finding, we may not disturb it. (Griffith Co. v. San Diego Col. for Women, supra, 45 Cal.2d at p. 508.)
To the extent Ting Ying Yao implies that she could never be personally served at this location because she did not live or work there, her declaration misses the mark. There is no requirement, statutory or otherwise, that the person being served live or work at the location where service is accomplished. Thus, Ting Ying could have been served while she was visiting Eric Yao at the location.
Although Ting Ying Yao maintains that the trial court erred in denying her request for a hearing to resolve the evidentiary conflict, she provides no authority for this proposition. Accordingly, we deem this issue abandoned. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)
At oral argument, appellant’s counsel referred several times to an envelope he mailed to: “C.S. Associates Inc., 515 Fullerton Road; Rowland Heights, CA 91748,” which was returned by the post office with the notation: “Return to Sender; Insufficient Address; Unable to Forward,” a copy of which is included in Appellant’s Appendix. But, when reviewing the correctness of a trial court’s judgment, the appellate court considers only matters which were part of the record at the time the judgment was entered. (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 763, fn. 3.) Since the envelope is date stamped by the post office December 11, 2006, it was obviously not part of the record at the time the judgment was entered and we do not consider it now.
2. Eric Yao
In his declaration in support of the original motion to vacate, Eric Yao averred: “After I received the summons and complaint . . . . I referred the matter to my ex-wife . . . .” In his subsequent declaration in support of the amended motion, Eric Yao averred: “In fact, I am not sure whether I was personally served with the summons and complaint, . . .” Eric Yao’s belated uncertainty as to whether he was served arguably does not even satisfy the Evidence Code section 647 burden of producing evidence; in any event, substantial evidence supported the trial court’s finding that he was served.
B. There Was Substantial Evidence That the Notice of Statement of Damages Was Properly Served
Defendants contend the trial court erred in awarding default judgment because the statement of damages was not timely or properly served as required by section 425.115. They argue that the address at which the statement of damages was served “was invalid, non-existed, and appellants never lived or worked there”; the affidavit of the process server was false; and, by plaintiff’s counsel’s own admission, the statement of damages mailed on February 16, 2006, was not delivered. We are unpersuaded.
Arguably, section 425.115 does not even apply to a demand for treble damages pursuant to section 1719, which is by definition a fixed sum (three times the amount of the returned check). But since both sides argue the case as if it does apply, and plaintiff in fact served a section 425.115 notice, we assume for purposes of our discussion that the statute applies.
Section 425.115 sets forth the procedural requirements a plaintiff must fulfill to preserve the right to seek punitive damages. These requirements include serving the defendant with a statement of the dollar amount of punitive damages being sought. Pursuant to subdivision (g)(1) of section 425.115, if the defendant has not yet appeared in the action, the statement of damages must be served in the same manner as a summons pursuant to section 415.10. According to section 580, subdivision (a), “The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint . . . or in the statement provided for by Section 425.115 . . . .” In Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 435, our Supreme Court noted that a defendant is entitled to “actual notice of the liability to which he or she may be subjected, a reasonable period of time before default may be entered.” (Italics added.) Subsequently, in California Novelties, Inc. v. Sokoloff (1992) 6 Cal.App.4th 936, 945, the court held that serving a statement of damages by mail 17 days prior to entry of default was reasonable. (See also Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1322 [rejecting 30 day notice rule in favor of the case-by-case approach announced in California Novelties].)
Here, the record on appeal includes proofs of service indicating that the registered process server personally served Eric and Ting Ying Yao at the Fullerton Road address with the statement of damages on May 17, 2006. Although defendants deny they were served, the trial court credited plaintiff’s evidence of service and discredited defendants’ contrary evidence.
Default was entered on June 14, 2006, 28 days after defendants were personally served with the statement of damages. This was a reasonable time to apprise the defendants of their potential liability.
C. Default Judgment Was Not Premature
As we understand defendants’ contention it is that, even assuming personal service was valid, the trial court erred in entering the default less than 30 days after the Notice of Statement of Damages was personally served on defendants. But as we have already discussed, assuming section 425.115 applies at all, there is no hard and fast 30 day rule. Rather, the statement of damages must be served on defendants a reasonable time before default is entered. Here, 28 days was a reasonable time.
D. Defendants Have Not Shown Default Judgment Was Taken as a Result of Mistake or Surprise
Defendants contend the trial court abused its discretion in denying their motion to vacate the default due to mistake and surprise. They argue (1) Eric Yao mistakenly believed he had no duty to respond to the complaint because it involved his ex-wife’s financial affairs, with which he was not involved; and (2) both defendants were surprised because they were never properly served. We are unpersuaded.
We review a challenge to a trial court’s order on a motion to vacate a default on equitable grounds for an abuse of discretion. (Cruz v. Fagor America, Inc. (2007)146 Cal.App.4th 488, 503 (Cruz).) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.)
“Extrinsic mistake exists when the ground for relief is not so much the fraud or other misconduct of one of the parties as it is the excusable neglect of the defaulting party to appear and present his claim or defense.” (Cruz, supra, 146 Cal.App.4th at p. 503.) But relief on these grounds is not available to a party that has been given notice of an action yet fails to appear, without having been prevented from participating in the action. (Ibid.) A party who has had a default entered against him bears the burden of demonstrating a satisfactory excuse for not responding to the original action in a timely manner. (Id. at pp. 503-504.)
Eric Yao’s argument that the default should be vacated because he mistakenly believed he had no duty to respond to the complaint is without merit. This is not a satisfactory excuse for not responding to the complaint in a timely manner.
Defendants’ argument that they were surprised because they were never properly served is equally unavailing inasmuch as the trial court found, and there is substantial evidence in the record to support the finding, that they were properly served. Therefore, they were not surprised.
E. Defendants May Not Challenge The Sufficiency of The Evidence Of Damages
As we understand defendants’ contention, it is that default should not have been entered against Eric Yao because there was not sufficient evidence, presented at the prove-up hearing, that he was involved in the transaction from which plaintiff’s claims arise. We disagree.
Section 585 provides in subdivision (a) that, in an action arising upon a contract or judgment for the recovery of money or damages only, if the defendant has been served and no responsive pleading filed within the time specified in the summons, “the clerk, or the judge if there is no clerk, upon written application of the plaintiff, and proof of the service of summons, shall enter the default of the defendant or defendants, so served, and immediately thereafter enter judgment for the principal amount demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for in Section 425.115, . . .” Subdivision (b) of section 585, which applies to actions other than those arising only upon a contract or judgment for the recovery of money or damages only, provides that, after default has been entered, the plaintiff “thereafter may apply to the court for the relief demanded in the complaint; the court shall hear the evidence offered by the plaintiff, and shall render judgment in his or her favor for such sum (not exceeding the amount stated in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115), as appears by such evidence to be just.”
While a defendant may appeal from a default judgment on the ground of jurisdiction, sufficiency of the pleadings, or excessiveness of the damages, he may not question the sufficiency of the evidence which the trial court heard before it granted the prayed for relief. (Uva v. Evans (1978) 83 Cal.App.3d 356, 363; see 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 355, pp. 403-404.)
Here, the verified complaint alleges causes of action for fraud and violation of section 1719 in addition to breach of contract. Thus, default judgment was governed by section 585, subdivision (b). Accordingly, after denying the motion to vacate, the trial court properly considered the averments of the verified complaint, including the attached NSF returned checks, before rendering its judgment. This record demonstrates that the trial court followed the proper procedure in rendering default judgment, and defendants may not challenge the sufficiency of the evidence.
DISPOSITION
The judgment is affirmed. Plaintiff shall recover her costs on appeal.
WE CONCUR: BOLAND, J., FLIER, J.