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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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.,

Plaintiffs and Respondents, 

v.

JOON W. KIM et al.,

Defendants and Appellants.

 B307413

 (Los Angeles County

 Super. Ct. No. 

BC687833)

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.
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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 
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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).
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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 
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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
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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
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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].)
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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 
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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.