Filed 11/10/22 Earnix International Trading v. Zhang CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

EARNIX INTERNATIONAL 

TRADING, LTD.,

 Plaintiff and Respondent,

v.

KEVIN ZHANG, 

Defendant and Appellant.

B316331

(Los Angeles County

Super. Ct. No. 20STCV14346)

APPEAL from an order of the Superior Court of Los 

Angeles County, Malcom Mackey, Judge. Affirmed.

Law Office of Gene H. Shioda and James Alexander Kim

for Defendant and Appellant. 

Cabanday Law Group and Orlando F. Cabanday for 

Plaintiff and Respondent.
2

INTRODUCTION

Plaintiff and Respondent Earnix International Trading Inc. 

(Earnix) invested in defendant and appellant Kevin Zhang’s real 

estate project. Earnix later filed a complaint against Zhang for 

fraud, breach of fiduciary duty, and other related claims.1 After 

the clerk entered default judgment, Zhang moved to vacate the 

judgment and quash service of the summons, claiming he was 

never personally served. The trial court denied Zhang’s motion,

his subsequent motion for reconsideration, and his motion to set 

aside/vacate default. Zhang timely appealed.2 Because the trial 

court’s order denying Zhang’s motion to quash and vacate the 

default judgment was supported by substantial evidence, we 

affirm.

BACKGROUND

Earnix filed a request for entry of default judgment on June 

5, 2020, based on a June 4, 2020 proof of service in which an 

unregistered process server, Michael Patini, swore he personally 

served Zhang on April 29, 2020, and Zhang’s failure to respond to 

the complaint. The request was rejected by the clerk on June 11, 

2020 because the proof of service form used by Patini was not the 

correct form for proof of service of a summons and complaint.

1 While the complaint named other defendants as well,

Zhang is the only appellant in this appeal. 

2 Zhang appealed only from the entry of the default 

judgment, but we will liberally construe the notice of appeal to 

include an appeal from the subsequent order denying Zhang’s 

motion to quash service of the summons and vacate entry of the 

default judgment.
3

Earnix filed a second request for entry of default judgment on 

June 16, 2020, based on a new proof of service form filed June 12, 

2020. In the new proof of service form, Patini testified he served 

Zhang at 2:00 p.m. on April 29, 2020, by personal delivery at an 

address in Pomona, California. The clerk entered default 

judgment the same day.

Six months later, in December 2020, Zhang moved for an 

order vacating default and quashing service of the summons. In 

support of his motion, Zhang submitted his own declaration 

claiming he was not personally served. Instead, Zhang testified 

he was at a meeting in Palos Verdes until approximately 

3:00 p.m. on the date of alleged service. Zhang also testified that 

the Pomona address where he was allegedly served was the 

former residence of his parents, but his parents had moved out of 

the home “when the home was listed for sale” before the claimed 

date of service. Additionally, Zhang submitted a declaration from 

Cong Du, a real estate agent who stated he represented the seller 

in the sale of the home. Du declared escrow closed on April 1 or 2, 

2020. Moreover, Du stated he “gave the keys and remote to access 

the property to escrow for the buyer” on the closing date. Du 

indicated Zhang was neither the buyer nor the seller of the home.

Du, however, did not testify he was present at the house on the 

date of the alleged service, nor that he was with Zhang on that 

date. 

In March 2021, the trial court denied Zhang’s motion,

finding the second proof of service was facially valid and raised 

the presumption of valid service. Moreover, the trial court found 

the dispute was “a ‘he said-she said’ type of evidentiary 

situation.” It reasoned the sale of the home did not prevent Zhang

from being at the property on the date of purported service. 
4

Later, in March 2021, Zhang filed a motion for 

reconsideration, again arguing he was not served. His motion 

included the grant deed for the home, reflecting a sale date before 

the claimed date of service. Additionally, in April 2021, Zhang 

filed a motion to set aside/vacate the default judgment pursuant 

to Code of Civil Procedure section 437.5. His motion included a 

new declaration from Seung Jun Kim. In this new declaration, 

Kim claimed he was with Zhang on the date of purported service 

from 9:00 a.m. to approximately 4:00 p.m. and Zhang was not 

served during that time. Moreover, Kim claimed Zhang could not 

have been in Pomona at 2:00 p.m. because they did not finish 

their meeting in Palos Verdes until sometime between 3:30 p.m. 

and 4:00 p.m.

In May 2021, after hearing argument from the parties, the 

trial court denied Zhang’s motion to set aside/vacate default and 

his motion for reconsideration. With respect to Zhang’s motion to

set aside/vacate default, the trial court noted it was within its 

discretion to accept a process server declaration, or contradictory 

evidence, in deciding whether service of a summons and 

complaint was validly accomplished. Additionally, the trial court 

noted Zhang’s motion for reconsideration was based on different 

grounds and added a new witness declaration that could have 

been included with the prior motion to quash service of summons. 

In sum, the trial court found Zhang failed to offer new or 

different facts, circumstances or law that he could not, with 

reasonable diligence, have discovered and presented in the prior 

motion to quash. Zhang timely appealed.

DISCUSSION

“A defendant who seeks review of an order denying a 

motion to quash must ordinarily petition the appellate court for a 
5

writ of mandate. (Code Civ. Proc., § 418.10, subd. (c).)” (American 

Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 

387.) “However, ‘a defendant may reserve his jurisdictional 

objection on appeal if, after the denial of his motion to quash, he 

makes no general appearance but suffers a default judgment,’” as 

happened here. (Ibid., fn. omitted.)

“When a defendant challenges the court’s personal 

jurisdiction on the ground of improper service of process ‘the 

burden is on the plaintiff to prove the existence of jurisdiction by 

proving, inter alia, the facts requisite to an effective service.’”

(Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413; see

Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The 

Rutter Group 2022) 4:421.5.)

We review the trial court’s express or implied factual 

findings on a motion to quash service under the substantial 

evidence standard. (Vons Companies, Inc. v. Seabest Foods, 

Inc. (1996) 14 Cal.4th 434, 449; Sonora Diamond Corp. v. 

Superior Court (2000) 83 Cal.App.4th 523, 535; Serafini v. 

Superior Court (1998) 68 Cal.App.4th 70, 77.) In doing so, we 

resolve all conflicts in the relevant evidence “against the 

appellant and in support of the order.” (Wolfe v. City of 

Alexandria (1990) 217 Cal.App.3d 541, 546.) Thus, our inquiry 

here turns on whether the trial court’s finding that Earnix met 

its burden to establish effective service was supported by 

substantial evidence.

“Substantial evidence is evidence ‘of ponderable legal 

significance, . . . reasonable in nature, credible, and of solid 

value.’” (Picerne Construction Corp. v. Castellino Villas (2016) 

244 Cal.App.4th 1201, 1208.) “‘Substantial evidence . . . is not 

synonymous with “any” evidence.’ Instead, it is ‘“‘substantial’
6

proof of the essentials which the law requires.”’” (Roddenberry v. 

Roddenberry (1996) 44 Cal.App.4th 634, 651.) We will not 

reweigh the trial court’s credibility determination on appeal. (See 

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

1434, 1440-1441 (Ramos).)

As a threshold matter, we note Zhang’s arguments 

concerning the June 4, 2020 proof of service have no bearing in 

this appeal, and therefore we will not address them other than to 

repeat that the clerk rejected that proof of service. The default 

judgment was entered based on the June 12, 2020 proof of 

service. 

Zhang contends he presented evidence refuting proper 

service and thus he shifted the burden to Earnix to present 

evidence showing proper service. But Zhang has at most pointed 

to a conflict in the evidence: Patini’s valid second proof of service 

indicates Zhang was served. Zhang’s contention he was not 

served, however, was supported only by his own declaration. Du’s 

declaration stated only that the house where Patini claims to 

have effectuated service had been sold before the claimed date of 

service. As the trial court pointed out, the sale of the home did 

not prevent Zhang from being at the residence. 

Alternatively, Zhang argues there was no presumption of 

valid service as Patini was not a registered process server. The 

filing of a statutorily compliant proof of service may create a 

rebuttable presumption that service was proper. (Evid. Code, 

§ 647; see Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 

1426, 1441-1442.) The rebuttable presumption applies where the 

return is furnished by a registered process server. (Evid. Code, 

§ 647.) Here, the proof of service indicates Patini was not a 

registered California process server. Thus, he was not entitled to 
7

the presumption that service was proper. The fact that Patini 

was not a registered process server, however, does not itself 

render service invalid nor establish that his proof of service is 

not to be considered. “There is no requirement that the person 

serving notices or a summons must be a registered process 

server . . . . A summons may be served by any person who is at 

least 18 years of age and not a party to the action.” (City of 

Riverside v. Horspool (2014) 223 Cal.App.4th 670, 680, citing 

Code Civ. Proc., § 414.10.) 

Patini’s second proof of service, executed under penalty of 

perjury, constituted substantial evidence of proper service of the 

summons and complaint. Moreover, nothing on the face of the 

proof of service suggests it is invalid or should not be credited. 

The trial court considered the evidence and impliedly made a 

credibility determination, crediting Patini over Zhang. As noted 

above, we will not reweigh the trial court’s credibility 

determination on appeal. (See Ramos, supra, 223 Cal.App.4th at 

pp. 1440-1441.)

Finally, Zhang contends Stafford v. Mach (1988) 64 

Cal.App.4th 1174 and Floveyor Internat., Ltd. v. Superior Court

(1997) 59 Cal.App.4th 789, two cases relied upon by the trial 

court, support his motion because the cases hold a defendant can 

“challenge the requisite facts of proper service by rebutting the 

claim of proper service, shifting the burden of proof of valid 

service to plaintiff.” As noted above, Zhang is correct that 

“plaintiff bears the burden of proof on the validity” of service. (Id.

at p. 793.) Earnix, however, did make a prima facie showing of 

the validity of service as the second proof of service complied with 

applicable statutory requirements. (Id. at p. 795.)
8

“When evidence presented below is conflicting, an appellate 

court must presume that ‘“‘“the [trial] court found every fact 

necessary to support its order that the evidence would justify. So 

far as it has passed on the weight of evidence or the credibility of 

witnesses, its implied findings are conclusive.”’” (Taylor-Rush v. 

Multitech Corp. (1990) 217 Cal.App.3d 103, 110, quoting Kulko v.

Superior Court (1977) 19 Cal.3d 514, 519, fn. 1, overruled on

other grounds by Kulko v. California Superior Court (1978) 436

U.S. 84.) ‘“[W]here there is substantial conflict in the facts stated, 

a determination of the controverted facts by the trial court will 

not be disturbed”’ on appeal.” (Stafford v. Mach, supra, 64 

Cal.App.4th at p. 1182.)

Zhang has failed to establish any basis for disturbing the 

trial court’s determination that he was properly served with the 

summons and complaint.
9

DISPOSITION

The judgment against Zhang is affirmed. The order denying 

Zhang’ motion to quash service of summons is also affirmed.

Earnix is awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J. 

We concur: 

WILLHITE, Acting P.J. 

COLLINS, J.