Filed 7/13/23 SDTJ v. Chang CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SDTJ, LLC,

Plaintiff and Respondent,

v.

QILIN CHANG et al.,

Defendants and Appellants.

D080402

(Super. Ct. No. 37-2020-

00030988-CU-BC-CTL)

APPEAL from an order of the Superior Court of San Diego County, 

Ronald F. Frazier, Judge. Affirmed.

FitzGerald Kreditor Bolduc Risbrough, Sherilyn Learned O’Dell and

Pfrancez C. Quijano for Defendants and Appellants. 

Higgs Fletcher & Mack, John Morris and Steven M. Brunolli for 

Plaintiff and Respondent. 
2

Qilin Chang and his wife, Chungling Wan, appeal from an order 

denying their motion to set aside entry of default and a default judgment that 

was entered against them and in favor of plaintiff SDTJ, LLC (SDTJ). They 

assert that the summonses were not properly served on them, that they did 

not respond due to an excusable mistaken belief that the underlying issue 

had been resolved, and that public policy dictates in favor of setting aside the 

default. We disagree and affirm the order. 

FACTUAL AND PROCEDURAL BACKGROUND

SDTJ entered into a single-tenant lease for a commercial space with 

Golden Flavor LP in December 2016. The lease agreement specified that the 

leased space was to be used as a franchised Golden Corral restaurant. The

Golden Flavor CEO, Zhenfei Xiang, also executed an individual Guaranty of 

Lease, as required by the lease agreement. 

Worlden EC, Inc. (Worlden) acquired an ownership interest in the 

franchised restaurant and took over the lease from Golden Flavor in June

2018. The parties—SDTJ, Golden Flavor and Worlden—executed a written 

Assignment of and First Amendment to Lease Agreement (the Amended 

Lease). Chang signed the Amended Lease as owner of Worlden, and he and 

his wife, Wan, also executed a Guaranty of Lease (the Guaranty), as required 

by Article 2.7 of the Amended Lease. Pursuant to the Guaranty, Chang and 

Wan agreed to be jointly and severally liable for all obligations and liabilities 

of Worlden, the tenant, under the terms of the Amended Lease, “including 

without limitation the obligation to pay rent thereunder.” 

Chang and Wan’s home address on Red Gum Drive was listed as

“Tenant’s Address for Notices” in the Amended Lease, and the Guaranty 

stated, “any notice, request, demand, instruction or other communication 

must be in writing and must be delivered in the manner provided in the 
3

Lease for delivery of notices.” The Red Gum Drive address was also listed as 

“Guarantors’ Address” under Chang and Wan’s signatures on the Guaranty. 

Chang and Wan operated the restaurant successfully and kept up on 

payments under the Amended Lease for nearly two years. But, in March 

2020, Worlden was forced to cease operations at the Golden Corral restaurant 

due to emergency orders issued by the State of California as a result of the 

emerging COVID-19 pandemic. Further, because the restaurant was a buffet

style restaurant, they were not able to operate on a take-out basis and 

remained closed for an extended period. Unable to generate revenue, 

Worlden stopped making its regular rent payments under the Amended 

Lease. Worlden did make some payments in April and May, but by July 

2020, they were approximately $45,000 in arrears. 

On July 13, 2020, SDTJ’s attorneys sent Chang and Wan a demand 

letter, seeking payment of the full amount owed pursuant to the Guaranty. 

In the letter, SDTJ asserted that the Guaranty was unconditional, that 

Chang and Wan were precluded from raising defenses based on the COVID19 pandemic, and that they would be responsible for attorney fees if SDTJ 

were to prevail in an action based on the Guaranty. Chang and Wan did not 

make any further payment at that time and, by September 2020, Worlden 

owed over $75,000 on the lease.

On September 3, 2020, SDTJ filed a complaint against Chang and 

Wan1 for breach of the Guaranty (the Complaint). In the Complaint, SDTJ 

alleged that Worlden owed “back rent in excess of $90,000,” and that Chang 

1 The Complaint also named Zhenfei Xiang and DOES 1 through 50. 

Xiang was subsequently dismissed and only Chang and Wan remain parties 

to the present appeal. 
4

and Wan had breached the Guaranty by failing to pay the rent owed. And, 

SDTJ alleged further, that Chang and Wan had agreed, in the Guaranty, to 

pay all costs and expenses of enforcing the Guaranty, including attorney fees. 

SDTJ sought damages “for outstanding rent owed [and] future rent owed 

through the term of the Lease,” as well as attorney costs and fees. 

On September 28, 2020, Worlden made a payment of $75,000 to SDTJ, 

bringing the account balance to approximately $615.2 But, Worlden did not 

make any further payments over the next couple of months, and the balance

grew to over $75,000 by early December, in part due to the accrual of

insurance and property tax payments. Meanwhile, SDTJ’s attorneys 

continued to pursue a settlement with Worlden, Chang, and Wan. 

Around the same time, Chang and Wan hired a contractor to do 

“extensive repairs” on their home on Red Gum Drive. They moved out for 

“several weeks” while the repairs were being conducted. A licensed process 

server attempted to serve summonses on Chang and Wan at the home in 

December, while the repairs were underway.

The declaration of diligence included in the summonses indicates that 

the process server went to the house on Red Gum Drive on Thursday, 

December 10, 2020, at 7:00 in the evening. The house was dark, and no one 

was home. The process server returned to the home on Friday just after the 

noon hour and spoke with “Jaden Doe.” Jaden said that Chang and Wan 

were not in, that they would be in “tomorrow before noon” and, “if not, he will 

accept for them.” The process server returned the next day at 9:25 in the 

2 In a separate pleading, Chang and Wan asserted the remaining 

$615.59 was the result of CAM (Common Area Maintenance) charges that 

Worlden may not have been aware of.
5

morning and served the summons for both Chang and Wan via substitute 

service on Jaden. The process server described Jaden as an Asian male in his 

30’s and as a “Co-Occupant” of the home. According to Chang and Wan, 

Jaden was not actually a co-occupant of the home, and was, instead, a 

member of the construction crew. 

Neither Chang nor Wan responded to the Complaint. SDTJ filed a 

request for entry of default judgment against Chang and Wan on February 

17, 2021. It was rejected, so SDTJ filed a second corrected request for entry 

of default judgment on March 12, 2021. SDTJ mailed copies of both filings to 

Chang and Wan at the Red Gum Drive address but, once again, Chang and 

Wan did not respond. The trial court accepted the second request, and, on 

April 22, 2021, the court issued a default judgment, in favor of SDTJ and 

against Chang and Wan, awarding $90,000 in damages, $629.90 in costs and 

$30,380 in attorney fees to SDTJ. 

Approximately three months later, on July 28, 2021, Chang and Wan 

moved to set aside the default judgment pursuant to Code of Civil Procedure3

section 473, subdivisions (b) and (d). They asserted the judgment was void 

because summonses were improperly served, and that their mistaken belief 

and understanding of the circumstances justified setting aside entry of 

default and the default judgment.

In a declaration in support of the motion, Chang admitted that he “was 

told that someone had dropped off some documents,” but asserted that he

“did not understand why the documents were there because [he] knew [he] 

had never been served.” He said he saw the Complaint “in the documents left 

3 All further unspecified statutory references are to the Code of Civil 

Procedure. 
6

with Jaden,” but thought it was a mistake because the Complaint was filed in 

early September, before he had paid off most of the overdue rent. He called 

into a hearing in the case in June 2021 but “did not understand fully what 

was happening” because he had never been served. He thought the entire 

matter was a mistake and believed there was a rule that landlords could not 

sue for rent during the shutdown. 

In the meantime, Chang and Wan caught up on rent and continued to 

operate the business. On November 5, 2021, SDTJ filed a writ of execution 

indicating a credit on the judgment in the amount of $88,806.49. The amount 

remaining due on the judgment was approximately $33,636.48; essentially, 

the attorney fees and costs plus interest.

The trial court held a hearing on Chang and Wan’s motion to set aside 

entry of default and the default judgment on February 4, 2022. The court 

issued a tentative ruling that same morning. In the tentative, the court first

noted that Chang and Wan asserted they were improperly served. The court 

then quoted section 473.5, subdivision (a),4 and concluded that improper 

service was not a basis to set aside the default or the default judgment 

because Chang admitted that he had actual notice of the judgment. Next, the 

court noted that, in the alternative, Chang and Wan sought discretionary 

relief under section 473, subdivision (b) based on their alleged mistaken 

belief that they did not need to respond to the lawsuit. The court declined to 

4 Section 473.5, subdivision (a) provides: “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.”
7

grant relief on that ground as well, finding that the alleged mistake was not 

reasonable or excusable. 

Chang and Wan each filed a declaration that same day. Seemingly in 

contradiction to his earlier declaration, Chang stated, “I do not recall Jaden 

informing me specifically about the plaintiff’s, SDTJ, LLC., complaint. When 

I visited the house, I saw that there was a pile of mail and documents left 

[for] me. It just so happens that SDTJ’s complaint was included in that pile.” 

Wan’s declaration stated only, “I did not go to the house to sort through the 

mail and documents left in the house. I have never seen the documents left 

by Plaintiff’s, SDTJ, LLC.” 

The hearing on the motion was not reported and, thus, there is no 

transcript in the record on appeal. After hearing argument, the trial court

confirmed its tentative ruling and denied the motion in a written order that 

was essentially identical to its prior tentative ruling.

Chang and Wan timely appealed.

DISCUSSION

Chang and Wan assert the trial court erred in denying their motion to 

set aside the default and default judgment. They contend that the complaint 

was not properly served, that the default judgment is therefore void, and that 

the trial court erred by relying on section 473.5 to preclude relief on that 

basis. They allege further that the trial court abused its discretion by failing 

to grant relief under section 473, subdivision (b), and that public policy 
8

dictates in favor of setting aside the default judgment, in part because they 

have valid defenses to the Complaint.5 We are not persuaded. 

I. The Judgment Was Not Void Because of Insufficient Service of Process

We first consider whether the judgment was void because, as Chang 

and Wan allege, substitute service of the summonses was not effective. 

Section 473, subdivision (d) provides that the trial court “ ‘may . . . on 

motion of either party after notice to the other party, set aside any void 

judgment or order.’ ” Compliance with the statutory procedures for service of 

process is necessary to establish personal jurisdiction over a party. 

(Kremerman v. White (2021) 71 Cal.App.5th 358, 369 (Kremerman).) “[I]f a 

default judgment was entered against a defendant who was not served with a 

summons as required by statute, the judgment is void, as the court lacked 

jurisdiction in a fundamental sense over the party and lacked authority to 

enter judgment.” (Id. at p. 370.) The threshold question of whether a 

judgment is void because of improper service of process is a question of law 

that this court reviews de novo. (Id. at p. 369; accord Sakaguchi v. Sakaguchi 

(2009) 173 Cal.App.4th 852, 858.) While the trial court “retains discretion to 

grant or deny a motion to set aside a void judgment” under section 473, 

subdivision (d), it does not have discretion “to set aside a judgment that is not 

void” in the first instance. (Kremerman, supra, at p. 369.) 

5 Chang and Wan also asserted, for the first time at oral argument, that 

the default judgment was void under section 580 because the relief granted 

exceeded the amount demanded in the complaint. It is a well settled rule of 

appellate practice that appellants must raise all claims and support them 

with meaningful argument and citation to authority in the opening brief; we 

will not address claims raised for the first time at oral argument. (See 

Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 

467, 554–555; Schmidt v. Bank of America, N.A. (2014) 223 Cal.App.4th 1489, 

1511; Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.App.4th 215, 226.)
9

As in the trial court, SDTJ argues the judgment was not void as a 

matter of law because the summonses were appropriately served on both 

Chan and Wan through substituted service on Jaden. We agree. Section 

415.20, subdivision (b) addresses substitute service and provides, in relevant 

part:

“If a copy of the summons and complaint cannot with 

reasonable diligence be personally delivered to the person to 

be served . . . a summons may be served 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 other than a United States Postal Service 

post office box, in the presence of a competent member of the 

household or a person apparently in charge of his or her 

office, place of business, or usual mailing address other than 

a United States Postal Service post office box, 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.”

The statute “shall be ‘liberally construed to effectuate service and 

uphold jurisdiction if actual notice has been received by the defendant.’ ” 

(Ellard v. Conway (2001) 94 Cal.App.4th 540, 544 (Ellard).)

Here, a licensed process server made three attempts to serve Chang 

and Wan at their home address on Red Gum Drive—the same address that 

was listed as the address to use for notice in both the Amended Lease and the 

Guaranty—but Chang and Wan were not there on any of the three attempts. 

“Ordinarily, two or three attempts at personal service at a proper place and 

with correct pleadings should fully satisfy the requirement of reasonable 

diligence and allow substituted service to be made.” (See Kremerman, supra, 

71 Cal.App.5th at p. 373.) Accordingly, the process server met the reasonable 
10

diligence requirement, and opted to serve Chang and Wan via substitute 

service, as permitted by section 415.20, subdivision (b). 

The process server did so by leaving the summons with Jaden. There is 

no dispute that Jaden was over 18 years of age, that he was at the residence

on two occasions, that he seemed to know Chang and Wan, and that he

agreed to accept service on their behalf. Thus, he appeared to be either a 

member of or in charge of the household while Chang and Wan were away. 

Chang and Wan argue that Jaden was part of the construction crew, and not 

a co-occupant, but the plain language of section 415.20 is to be liberally 

construed (see Ellard, supra, 94 Cal.App.4th at p. 544), and does not require 

that the individual receiving substitute service be an actual member of the 

household. It was enough that Jaden appeared to be in charge of the 

household in Chang and Wan’s absence. (See Ludka v. Memory Magnetics 

International (1972) 25 Cal.App.3d 316, 320–321 [declaration that process 

server left documents with unidentified individual in reception area was 

sufficient to establish substitute service].) Chang and Wan agreed to receive 

notices related to the Amended Lease and Guaranty at the Red Gum Drive

address and cannot now avoid service simply by moving out and leaving no 

one else in charge, such that there was no “member of the household” 

available.

And, as the trial court noted, Chang admitted that he was told that

someone “had dropped off some documents” when he visited the house to 

check on the repairs that same month, and that he “saw the complaint in the 

documents left with Jaden.” Although he now contends otherwise, Chang’s 

own declaration establishes that he did have actual notice that the 
11

summonses and Complaint were hand-delivered to Jaden at the address

listed in the Amended Lease and Guaranty in December.6

Chang and Wan assert the trial court did not make an express finding 

regarding the effectiveness of the substitute service, and instead found that 

relief was not warranted because Chang had actual notice of the lawsuit

pursuant to section 473.5, subdivision (a). The trial court included this same 

reasoning in its tentative order and, presumably, the parties had a chance to 

address it at the hearing on the motion, but in the absence of a reporter’s 

transcript, we are unable to decipher whether the issue was raised or 

addressed by the court. Regardless, because our review of whether the 

judgment is void in the first instance is de novo, we need not rely on the trial 

court’s reasoning. (See Tackman v. Kenney (2010) 187 Cal.App.4th 175, 182 

[on de novo review, appellate court generally reviews “a trial court’s ruling, 

not its reasoning”]; Olvera v. Olvera (1991) 232 Cal.App.3d 32, 38–39 [“on 

appeal we may consider whether the order was supported by any of the 

grounds raised by the parties”].)

On our own independent review, we conclude Chang and Wan were 

effectively served through substitute service on Jaden at their place of 

residence, and, therefore, the default judgment was not void for lack of 

6 In a related argument, Chang and Wan assert they did not have actual 

notice despite receiving the documents because they did not speak English 

well and had only been in the United States for a few years. The contention 

is belied by the fact that they had signed a sophisticated lease agreement and 

guaranty, both in English. 
12

service. Accordingly, the trial court did not have discretion to set aside the 

default judgment under section 473, subdivision (d).7

II. The Trial Court Did Not Abuse Its Discretion by Declining to Set Aside 

the Default Judgment Based on Mistake, Inadvertence, Surprise, or 

Excusable Neglect

We turn next to Chang and Wan’s assertion that the trial court erred 

by failing to grant them discretionary relief based on mistake, inadvertence, 

surprise, or excusable neglect pursuant to section 473, subdivision (b). 

Section 473, subdivision (b) provides, in relevant part: “The court may, 

upon any terms as may be just, relieve a party or his or her legal 

representative from a judgment, dismissal, order, or other proceeding taken 

against him or her through his or her mistake, inadvertence, surprise, or 

excusable neglect.” Unlike subdivision (d), this portion of subdivision (b) is a 

purely discretionary provision and, thus, we review the trial court’s decision 

solely for an abuse of that discretion. (Fasuyi v. Permatex, Inc. (2008) 167 

Cal.App.4th 681, 694 [“This part of section 473 is recognized as invoking the 

trial court’s discretion, and the judgment of the trial court ‘ “shall not be 

disturbed on appeal absent a clear showing of abuse.” ’ ”].) 

At the same time, the California Supreme Court has counseled, “the 

trial court’s discretion is not unlimited and must be ‘ “exercised in conformity 

with the spirit of the law and in a manner to subserve and not to impede or 

defeat the ends of substantial justice.” ’ ” (Elston v. City of Turlock (1985) 38 

Cal.3d 227, 233.) “Section 473 is often applied liberally where the party in 

7 Chang and Wan also assert they are entitled to equitable relief from 

the judgment based on the “false recital of the service.” This argument fails 

for all the same reasons that we conclude the judgment was not void for 

insufficient service.
13

default moves promptly to seek relief,” and, “because the law strongly favors 

trial and disposition on the merits, any doubts in applying section 473 must 

be resolved in favor of the party seeking relief from default.” (Ibid.) 

“Therefore, a trial court order denying relief is scrutinized more carefully 

than an order permitting trial on the merits.” (Ibid.; accord Zamora v. 

Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 (Zamora) 

[“Where the mistake is excusable and the party seeking relief has been 

diligent, courts have often granted relief pursuant to the discretionary relief 

provision of section 473 if no prejudice to the opposing party will ensue.”]; 

Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1444 

[policy of the law favors a hearing on the merits].)

Here, despite this somewhat heightened standard, we have no trouble 

concluding the trial court did not abuse its discretion in denying Chang and 

Wan’s request for relief. As the trial court explained, it is well established 

that where a party requests relief from default based on the discretionary 

provisions of section 473, subdivision (b), the error must have been excusable. 

(See Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1007.) 

“ ‘Although the policy of the law is to favor a hearing on the merits of a case, 

courts are not required to set aside default judgments for defendants who 

flagrantly ignore the responsibility to present a defense. The burden of a 

party who has had a default entered against him is not limited to merely 

articulating the existence of a meritorious case. The defendant must also 

demonstrate a satisfactory excuse for not responding to the original action in 

a timely manner.’ ” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 

503–504 (Cruz).) “The standard is whether ‘ “a reasonably prudent person 

under the same or similar circumstances” might have made the same error.’ ” 

(Solv-All, at p. 1007; accord Zamora, supra, 28 Cal.4th at p. 258 [“In 
14

determining whether the attorney’s mistake or inadvertence was excusable, 

‘the court inquires whether “a reasonably prudent person under the same or 

similar circumstances” might have made the same error.’ ”].) 

Chang and Wan have not established that their failure to respond to 

the summons and Complaint was excusable, or that a reasonably prudent 

person would have made the same error under similar circumstances. As 

they did in the trial court, Chang and Wan assert that Chang simply 

assumed the Complaint “had been taken care of” because he had made a 

payment in late September, after the Complaint was filed. But SDTJ’s 

counsel averred that at least some balance remained outstanding, and that

Worlden was significantly in arrears again by December when the 

summonses were served. The ledgers SDTJ submitted in support of their 

request for the default judgment support that claim. Moreover, the 

Complaint also sought attorney fees, consistent with the demand letter SDTJ 

had previously sent to Chang and Wan. Thus, Chang and Wan had reason to 

believe the matter was not resolved by the single $75,000 payment. Despite 

this, there is no indication in the record that Chang or Wan made any

attempt to reach out to his SDTJ, or their own counsel, to confirm that the 

dispute had been resolved. As the trial court concluded, “[r]easonable 

prudence counsels against ignoring a summons and complaint.” 

Chang and Wan assert further that Wan provided a declaration stating 

she did not go to the house and had never seen the documents left by the 

process server. As an initial matter, the declaration was not submitted until

the day of the motion hearing, and the trial court’s order at least suggests 

that the trial court did not consider it. (See Cruz, supra, 146 Cal.App.4th at 

pp. 503–504 [party seeking to set aside default must present evidence of 

excusable mistake]; Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 
15

[general rule of motion practice is that new evidence is not permitted with 

reply papers].) Regardless, Chang admitted looking through the documents 

and would have seen the summons for Wan as well. Notably, Wan does not 

acknowledge that her husband did go through the documents, nor does she 

affirmatively state that she did not know about the summons or the 

Complaint. Wan cannot avoid the litigation simply by refusing to look at the 

documents left for her at the address listed in the Amended Lease and 

Guaranty. 

Next, Chang and Wan assert that they believed they were protected 

from litigation based on an emergency ordinance that relieved commercial 

tenants of the obligation to pay rent while unable to operate due to the 

pandemic. But, again, the Complaint was based on the Guaranty, not the 

Amended Lease, and the demand letter that SDTJ sent to Chang and Wan 

noted that defenses related to the COVID-19 pandemic were not available to 

Chang and Wan under the unconditional Guaranty. Thus, at the very least, 

Chang and Wan should have known there was a dispute between them and 

SDTJ as to the impact of any such ordinance on their obligations as

guarantors. Regardless, the ordinance did not relieve Chang and Wan from 

their obligation to respond to the Complaint.

Chang and Wan rely on Bernards v. Grey (1950) 97 Cal.App.2d 679, to 

assert relief was warranted, but Bernards does not support their position. 

There, the defendant, the administrator of an estate, was admittedly served 

with a summons and complaint while standing outside the courthouse after a 

hearing on related matters. (Id. at p. 682.) He alleged that he placed the 

documents in his briefcase, “merely noting that they referred to the present 

action, and ‘through inadvertence, did not call to counsel’s attention the 

papers he had received and was not at said time aware of their nature.’ ” 
16

(Ibid.) Here, Chang admits to having seen the Complaint and does not 

contend that he did not understand the nature of the Complaint; he merely 

asserts he thought that the matter was resolved, but as we have explained, 

that did not excuse him from failing to respond. 

Finally, Chang and Wan assert they have valid defenses to raise, and 

that this court should consider those defenses in deciding whether to affirm 

the trial court’s ruling. They rely on Luxury Asset Lending, LLC v. 

Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894, in which 

the appellate court explained that although rulings on motions for relief from 

default are reviewed for an abuse of discretion, “ ‘it is the policy of the law to 

favor, whenever possible, a hearing on the merits, and appellate courts are 

much more disposed to affirm an order where the result is to compel a trial 

on the merits than they are when the judgment by default is allowed to stand 

and it appears that a substantial defense could be made.’ ” (Id. at pp. 907–

908.) But, here, Chang and Wan fail to establish a substantial defense on the 

merits. (See Singman v IMDB.com, Inc. (2021) 72 Cal.App.5th 1150, 1151 

(Singman) [Appellant bears the burden of establishing legal error through 

citations to the record and relevant legal authority].)

First, they assert that SDTJ waived its right to declare a forfeiture of 

the lease by accepting rent after the original breach occurred. (See, e.g., EDC 

Associates, Ltd. v. Gutierrez (1984) 153 Cal.App.3d 167, 171 [holding a 

landlord waived its right to declare forfeiture and gain possession of a leased 

property by accepting late rent payments].) As we have explained, SDTJ did 

not seek forfeiture of the Amended Lease; it sought to enforce the Guaranty

against Chang and Wan as individuals. Moreover, SDTJ did credit Chang 

and Wan for the rent payment made in September. SDTJ filed a writ of 

execution and a memorandum of costs after judgment, acknowledgment of 
17

credit, and declaration of accrued interest in November 2021, in which SDTJ 

acknowledged that it had received and applied $90,000 against the judgment. 

SDTJ asserted that Chang and Wan remained responsible for $32,203.42 in 

principal, and $1,570.47 in interest. Thus, it appears SDTJ credited Chang 

and Wan for the rent that was paid but continued to seek payment of the 

portion of the judgment reflecting the attorney fees incurred to enforce the 

Guaranty. Chang and Wan present no authority indicating SDTJ forfeited 

its right to recoup attorney fees, and thus, have not established that the 

eventual, albeit delayed, payment of rent would serve as a complete defense 

to the Complaint. 

Second, Chang and Wan assert defenses based on their inability to 

operate the restaurant during the COVID-19 pandemic. They rely on San 

Diego County Ordinance No. O-21177, an emergency ordinance passed by the 

County of San Diego on March 25, 2020, establishing a temporary 

moratorium on evictions due to the nonpayment of rent caused by a decrease 

in revenue due to the COVID-19 pandemic. Contrary to their assertions, 

though, the ordinance did not create a forbearance on the obligation to pay 

rent; it merely placed a moratorium on evictions, which SDTJ did not seek. 

Further, the ordinance does not appear to exclude actions against a 

guarantor for rent owed, and Chang and Wan present no authority indicating 

that it does. (See Singman, supra, 72 Cal.App.5th at p. 1151.)

Finally, Chang and Wan assert, more generally, that the COVID-19 

shut down frustrated the commercial purpose of the lease. The only 

authority they provide is a 1944 case in which a lessee of neon lights 

attempted to return the lights and terminate the lease based on frustration of 

purpose after an emergency war measure ordered the cessation of all outside 

lighting from sunset until sunrise. (20th Century Lites, Inc. v. Goodman 
18

(1944) 64 Cal.App.2d Supp. 938, 940.) Here, Chang and Wan did not attempt 

to return the leased premises and terminate the lease. Rather, it is 

undisputed that Worlden maintained occupancy during the shutdown, with 

intentions to re-open the restaurant when feasible. Moreover, here, the 

lawsuit was not based on the lease, but rather on Chang and Wan’s personal

Guaranty, the very purpose of which was to ensure payment of rent in the 

event that Worlden did not fulfill its obligations under the Amended Lease. 

Chang and Wan present no authority indicating they would be likely to 

prevail under a frustration of purposes theory under these facts. (See 

Singman, supra, 72 Cal.App.5th at p. 1151.)

In sum, we conclude that Chang and Wan have not established that 

their failure to respond to the summons and Complaint was excusable, or 

that they had a substantial defense to the claims raised in the Complaint. 

Accordingly, we cannot conclude that the trial court abused its discretion in 

denying them discretionary relief from the default or the default judgment. 

DISPOSITION

The order is affirmed. Respondent SDTJ is entitled to costs on appeal. 

KELETY, J.

WE CONCUR:

DATO, Acting P. J.

BUCHANAN, J.