This case was last updated from Los Angeles County Superior Courts on 05/30/2021 at 00:04:58 (UTC).

JASON H. KIM VS WILSHIRE PROPERTY MANAGEMENT LLC., ET AL.

Case Summary

On 05/25/2018 JASON H KIM filed an Other lawsuit against WILSHIRE PROPERTY MANAGEMENT LLC . This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******7599

  • Filing Date:

    05/25/2018

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Other

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JON R. TAKASUGI

 

Party Details

Plaintiff

KIM JASON H.

Los Angeles, CA 90005

Defendants

CASA DE WILTON LLC.

MORRIS MAKI

WILSHIRE PROPERTY MANAGEMENT LLC.

KING ALLEN R.

FEINGOLD MOSHE

Attorney/Law Firm Details

Defendant Attorney

NUSSBAUM LANE MICHAEL

 

Court Documents

Declaration (name extension) - Declaration in support of motion to set aside default

2/24/2020: Declaration (name extension) - Declaration in support of motion to set aside default

Motion to Set Aside/Vacate Default and / or Default Judgment - Motion to Set Aside/Vacate Default and / or Default Judgment

2/24/2020: Motion to Set Aside/Vacate Default and / or Default Judgment - Motion to Set Aside/Vacate Default and / or Default Judgment

Proof of Service by Mail - Proof of Service by Mail

2/24/2020: Proof of Service by Mail - Proof of Service by Mail

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

3/23/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

4/23/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

4/24/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Answer - Answer

8/4/2020: Answer - Answer

Notice of Ruling - Notice of Ruling

8/4/2020: Notice of Ruling - Notice of Ruling

Certificate of Mailing for - Certificate of Mailing for (Order to Show Cause Re: Failure to File Proof of Service and ...) of 10/13/2020

10/13/2020: Certificate of Mailing for - Certificate of Mailing for (Order to Show Cause Re: Failure to File Proof of Service and ...) of 10/13/2020

Proof of Personal Service - Proof of Personal Service

9/27/2019: Proof of Personal Service - Proof of Personal Service

Proof of Personal Service - Proof of Personal Service

9/27/2019: Proof of Personal Service - Proof of Personal Service

Proof of Personal Service - Proof of Personal Service

9/27/2019: Proof of Personal Service - Proof of Personal Service

Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment

10/1/2019: Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment

Certificate of Mailing for - Certificate of Mailing for (Court Order) of 11/21/2019

11/21/2019: Certificate of Mailing for - Certificate of Mailing for (Court Order) of 11/21/2019

Civil Case Cover Sheet

5/25/2018: Civil Case Cover Sheet

Summons - on Complaint

5/25/2018: Summons - on Complaint

Order on Court Fee Waiver (Superior Court)

5/25/2018: Order on Court Fee Waiver (Superior Court)

20 More Documents Available

 

Docket Entries

  • 10/13/2020
  • DocketMinute Order (Order to Show Cause Re: Failure to File Proof of Service and ...)

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  • 10/13/2020
  • DocketCertificate of Mailing for (Order to Show Cause Re: Failure to File Proof of Service and ...) of 10/13/2020; Filed by: Clerk

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  • 10/13/2020
  • DocketOn the Complaint filed by Jason H. Kim on 05/25/2018, entered Order for Dismissal without prejudice as to the entire action

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  • 10/13/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service and Failure to File Default Judgment Pursuant to CRC 3.740 /Dismissal scheduled for 10/13/2020 at 09:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 10/13/2020; Result Type to Held

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  • 10/13/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 05/28/2021 at 10:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 10/13/2020

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  • 08/04/2020
  • DocketAnswer; Filed by: Wilshire Property Management LLC. (Defendant); Moshe Feingold (Defendant); Maki Morris (Defendant)

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  • 08/04/2020
  • DocketNotice of Ruling; Filed by: Wilshire Property Management LLC. (Defendant); Moshe Feingold (Defendant); Maki Morris (Defendant)

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  • 08/03/2020
  • DocketMinute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)

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  • 08/03/2020
  • DocketOn the Complaint filed by Jason H. Kim on 05/25/2018, Default entered on 10/01/2019, Vacated - .

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  • 08/03/2020
  • DocketOn the Complaint filed by Jason H. Kim on 05/25/2018, Default entered on 10/01/2019, Vacated - .

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32 More Docket Entries
  • 02/04/2019
  • DocketCase reassigned to Stanley Mosk Courthouse in Department 94 - Hon. James E. Blancarte; Reason: Inventory Transfer

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  • 05/25/2018
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 05/25/2018
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 05/25/2018
  • DocketCivil Case Cover Sheet; Filed by: Jason H. Kim (Plaintiff)

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  • 05/25/2018
  • DocketOrder on Court Fee Waiver (Superior Court); Signed and Filed by: Clerk; As to: Jason H. Kim (Plaintiff)

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  • 05/25/2018
  • DocketRequest to Waive Court Fees; Filed by: Jason H. Kim (Plaintiff)

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  • 05/25/2018
  • DocketComplaint; Filed by: Jason H. Kim (Plaintiff); As to: Wilshire Property Management LLC. (Defendant); Allen R. King (Defendant); Moshe Feingold (Defendant) et al.

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  • 05/25/2018
  • DocketCase assigned to Hon. Jon R. Takasugi in Department 94 Stanley Mosk Courthouse

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  • 05/25/2018
  • DocketNon-Jury Trial scheduled for 11/22/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 05/25/2018
  • DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 05/28/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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Tentative Rulings

Case Number: 18STLC07599    Hearing Date: August 03, 2020    Dept: 25

HEARING DATE: Mon., August 3, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Kim v. Wilshire Property Management, LLC, et al.

CASE NUMBER: 18STLC07599 COMP. FILED: 05-25-18

NOTICE: OK DEFAULT: 10-1-19

DEF. JDGMT: NONE

PROCEEDINGS: DEFENDANTS’ MOTION TO SET ASIDE AND VACATE DEFAULT AND DEFAULT JUDGMENT

MOVING PARTY: Defendants Wilshire Property Management, LLC, Moshe Feingold, and Morris Maky

RESP. PARTY: None

MOTION TO SET ASIDE/VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP §§ 473, 473.5)

TENTATIVE RULING:

Defendants Wilshire Property Management, LLC, Moshe Feingold, and Morris Maky’s Motion is GRANTED as to the request to set aside default. The default entered against Defendants Wilshire Property, Feingold, and Maky on October 1, 2019 is HEREBY VACATED. However, Defendants’ request to set aside default judgment is DENIED.

Proposed answer to be filed within ten (10) days of this order.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of July 29, 2020 [ ] Late [X] None

REPLY: None filed as of July 29, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background

On May 25, 2018, Plaintiff Jason Kim (“Plaintiff”) filed an action, in pro per, for declaratory relief, abuse of process, wrongful eviction, severe emotional distress, and fraud against Defendants Wilshire Property Management, LLC (“Wilshire Property”), Allen R. King (“King”), Moshe Feingold (“Feingold”) Case de Wilton, LLC (“Casa de Wilton”), and Morris Maky, erroneously sued as Maki Morris (“Maky”).

On September 27, 2019, Plaintiff filed proofs of service purporting to show that Defendants Wilshire Property, Feingold, and Maky were personally served with the Summons and Complaint on August 30, 2018. (9/27/19 Proofs of Service.) On October 1, 2019, default was entered as to Defendants Wilshire Property, Feingold, and Maky. (10/1/19 Requests for Entry of Default.)

On February 24, 2020, Defendants Wilshire Property, Feingold, and Maky filed the instant Motion to Set Aside and Vacate Default and Default Judgment (the “Motion”). On April 24, 2020, the Court, on its own motion, continued the hearing to August 3, 2020 at 9:00 a.m. (4/24/20 Notice re Continuance of Hearing and Order.) Plaintiff was ordered to give notice of the continuance and file a proof of service demonstrating he gave such notice. (Id.)

To date, Plaintiff has not filed a proof of service demonstrating it gave notice of the continuance or an opposition to his Motion.

  1. Legal Standard

“‘A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action’ [citation], and a defendant has an absolute right to demand that process be issued against him in a manner prescribed by law.” (Mannesmann DeMag, Ltd. v. Superior Court (1985) 172 Cal.App.3d 1118, 1122.) “Constitutional due process requirements are satisfied where the form of service provided and employed is reasonably calculated to give a litigant actual notice of the proceedings and an opportunity to be heard.” (Crescendo Corp. v. Shelted, Inc. (1968) 267 Cal.App.2d 209, 213.) “‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]’” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) “‘[A] void at any time (Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co., Ltd. (2018) 24 Cal.App.5th 115, 136.)

Code of Civil Procedure section 473.5 states, in relevant part:

  1. 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. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

  2. A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

  3. Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.

(Code Civ. Proc., § 473.5, subds. (a)-(c).)

A proof of service containing a declaration from a registered process server invokes a presumption of valid service. (See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.) This presumption is rebuttable. (See id.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].) Merely denying service took place without more is insufficient to overcome the presumption. (See Yadegar, supra, 194 Cal.App.4th at 1428.)

  1. Discussion

Defendants Wilshire Property, Feingold, and Morris move the Court to set aside the default and default judgment entered against them on the basis that they were never served with the Summons and Complaint. (Mot., p. 4:9-13.) However, the Court notes that default judgment has not yet been entered against any defendant.

Defendants’ Motion is timely and was filed and served within a reasonable time after discovering the default. Defendant Feingold first learned of this action on December 17, 2019 after a routine credit search revealed the action. (Mot., p. 1:16-19, Feingold Decl., ¶ 3, Exh. C.) Defendant Feingold then informed Defendant Maky of the action that same day. (Id. at ¶ 4; Maky Decl., ¶ 4.)

Moving Defendants argue they were never served and never received a copy of the Summons and Complaint. (Mot., p. 3:3-6.) Plaintiff’s proof of service states that Defendant Feingold was personally served, as an individual and as the authorized agent for Defendant Wilshire Property, on August 30, 2018 at 10:30 a.m. by Jacob K. Lee (“Lee”). (9/27/19 Proofs of Service.) When a proof of service is completed by a registered process server, the document is entitled to a rebuttable presumption of service. (Evid. Code, § 647.) Lee is not a registered California process server. (Id. at ¶ 7.) Thus, Plaintiff is not entitled to a presumption of service pursuant to Evidence Code section 647. Defendant Feingold also provides evidence that on August 30, 2018 between 9:30 a.m. and 10:30 a.m., he was in Long Beach, CA showing a vacancy at a property. (Mot., Feingold Decl., ¶¶ 1-2, Exh. B.)

Plaintiff’s proof of service as to Defendant Maky similarly states that he was personally served on August 30, 2018 by Lee at 1510 South Coast Hwy, Oceanside, CA 92504 (the “Oceanside Address”) at 1:30 p.m. (9/27/19 Proof of Service.) However, Defendant Maky states that on August 30, 2018, a Thursday, he was working at a jewelry store located at 631 S. Broadway St. from open to close as he has every weekday for the past 25 years. (Mot., Maky Decl., ¶ 2.) Defendant Maky also states that the Oceanside Address appears to be an RV park, to which he has no connection. (Id. at ¶ 3.)

Importantly, Plaintiff has not filed an opposition demonstrating moving defendants were properly served. Based on the evidence presented, and because Plaintiff’s proofs of service are not entitled to a rebuttable presumption, the Motion is GRANTED as to the request to set aside default. However, as no default judgment has been entered, the request to set aside default judgment is DENIED.

  1. Conclusion & Order

For the foregoing reasons, Defendants Wilshire Property Management, LLC, Moshe Feingold, and Morris Maky’s Motion is GRANTED as to the request to set aside default. The default entered against Defendants Wilshire Property, Feingold, and Maky on October 1, 2019 is HEREBY VACATED. However, Defendants’ request to set aside default judgment is DENIED.

Proposed answer to be filed within ten (10) days of this order.

Moving parties are ordered to give notice.