This case was last updated from Los Angeles County Superior Courts on 02/17/2016 at 02:36:13 (UTC).

ANN HON VS HERMAN YEE

Case Summary

On 06/19/2008 ANN HON filed a Property - Other Real Property lawsuit against HERMAN YEE. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The Judges overseeing this case are DUKES, ROBERT A. and OKI, DAN THOMAS. The case status is Disposed - Judgment Entered.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****3203

  • Filing Date:

    06/19/2008

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Pomona Courthouse South

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DUKES, ROBERT A.

OKI, DAN THOMAS

 

Party Details

Plaintiffs

HON ANN

LAI CHARLES

Defendants

WILSHIRE EQUITIES CORPORATION

GOLDEN WEST SAVINGS ASSOCIATION SERVICE

TITLE INSURANCE AND TRUST COMPANY

YEE HERMAN

ORANGE COAST TITLE COMPANY

TSU JEFFREY C.

FIRST SELECT CORPORATION

ASTA FUNDING ACQUISITION

Attorney/Law Firm Details

Plaintiff Attorneys

GAO PENG

LEUNG RICHARD LAW OFFICES OF

Defendant Attorney

KALUGER MICHAEL M. JR.

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 09/21/2009
  • Judgment Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 09/21/2009
  • Request for Dismissal-Partial ( defts all persons unknown claiming any interest in the property only complaint ) Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 09/17/2009
  • Declaration (of Richard Leung in Support of Appointment of Jerry Wang as Referee ) Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 08/28/2009
  • Default Entered (COURT JUDGMENT SENT TO DEPT J ON 8/31/09 W/ FILE. (HRG 9/3/09) ) Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 06/01/2009
  • Proof of Publication Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 05/05/2009
  • Declaration (of Richard Leung that the summons & complaint has been mailed to Herman Yee ) Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 04/28/2009
  • Appl.&Order for Public. of Summons ( as to deft herman yee ) Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 03/25/2009
  • Statement-Case Management Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 01/28/2009
  • Substitution of Attorney Filed by Plaintiff

    Read MoreRead Less
  • 01/05/2009
  • Order ( to be relieved as counsel of record ) Filed by Attorney for Plaintiff

    Read MoreRead Less
9 More Docket Entries
  • 11/05/2008
  • Statement-Case Management Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 11/05/2008
  • Proof of Service (CMC ) Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 11/04/2008
  • Proof of Service Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 10/15/2008
  • Miscellaneous-Other (NON-SERVICE RE: HERMAN YEE ) Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 10/15/2008
  • Proof of Service (ORANGE COAST TITLE COMPANY ) Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 09/26/2008
  • Declaration (of Non-Monetary Status ) Filed by Attorney for Defendant

    Read MoreRead Less
  • 09/24/2008
  • Notice ( OF PEND. ) Filed by Plaintiff

    Read MoreRead Less
  • 08/19/2008
  • OSC-Failure to File Proof of Serv Filed by Clerk

    Read MoreRead Less
  • 06/23/2008
  • Notice-Case Management Conference Filed by Clerk

    Read MoreRead Less
  • 06/19/2008
  • Complaint Filed

    Read MoreRead Less

Tentative Rulings

Case Number: KC053203    Hearing Date: December 30, 2019    Dept: J

HEARING DATE: Monday, December 30, 2019

NOTICE: Motions #1 & #2: OK[1]

RE: Hon, et al. v. Yee, et al. (KC053203; R/T Case No. KC068890) [AMENDED]

______________________________________________________________________________

1. Defendant Herman Yee’s MOTION TO VACATE JUDGMENT

Responding Party: Plaintiffs, Ann Hon and Charles Lai[2]

2. Defendant Herman Yee’s MOTION TO TAX COSTS

Responding Party: Plaintiffs, Ann Hon and Charles Lai

Tentative Ruling

1. Herman Yee’s Motion to Vacate Judgment is GRANTED.

2. Defendant Herman Yee’s Motion to Tax Costs is TAKEN OFF-CALENDAR as MOOT.

Background

Case No. KC053203

Plaintiffs Ann Hon (“Hon”) and Charles Lai (“Lai”) collectively own an undivided two-thirds interest as tenants in common in the property located at 1446 Cabinda Drive, Hacienda Heights, California 91745 (“Hacienda Heights Property”); Herman Yee (“Yee”) owns the remaining undivided one-third interest as a tenant in common in same. Plaintiffs seek a partition by sale of the Hacienda Heights Property. On June 19, 2008, Hon and Lai filed a complaint, asserting causes of action against Defendants Yee, Golden West Savings Association Service Co. (“Golden West”), Wilshire Equities Corporation (“Wilshire”), Title Insurance and Trust Company (“Title Insurance”), Jeffrey C. Tsu (“Tsu”), Asta Funding Acquisition (“Asta”), First Select Corporation (“FSC”), Orange Coast Title Company (“Orange Coast”), Does 1-50 and All Persons Unknown Claiming Any Interest in the Property (“All Persons”) for:

  1. Partition of Real Property

On September 26, 2008, Orange Coast filed a Declaration of Non-Monetary Status. On November 6, 2008, Hon and Lai dismissed Title Insurance, FSC, Wilshire and Asta without prejudice. On November 13, 2008, Hon and Lai dismissed Tsu and Golden West without prejudice.

On April 28, 2009, an Order for Publication was filed as to Yee. On June 1, 2009, Proof of Publication was filed as to Yee.

On August 28, 2009, Yee’s default was entered. On September 21, 2009, Hon and Lai dismissed All Persons without prejudice. On September 21, 2009, Interlocutory Judgment for Partition by Sale was filed.

On June 6, 2019, Hon and Lai filed an Application for and Renewal of Judgment, as well as a Memorandum of Costs After Judgment, Acknowledgment of Credit and Declaration of Accrued Interest.

On September 23, 2019, Hon and Lai filed a Notice of Renewal of Judgment.

 

Case No. KC053203

Yee seeks to partition the Hacienda Heights Property, as well as the property located at 111 E. Emerson Avenue in Monterey Park, California (“Monterey Park Property). Yee has alleged that Hon and Lai committed a fraud upon the court in Case No. KC053203 by claiming that Yee could not be located, that his whereabouts were unknown, and that service upon him could only be made via publication. Yee has alleged that Lai made false statements in a declaration regarding the origins of various liens on the Hacienda Heights Property and that a default was entered against Yee on August 28, 2009. Yee has alleged that despite the court’s entry of default and order for partition, it appears that the Hacienda Heights Property was never sold. Yee also seeks 50% ownership in NCI Apparel, Inc. (“NCI”) and requests an accounting. On November 23, 2016, Yee filed a complaint, asserting causes of action against Hon, Lai, NCI and Does 1-100 for:

  1. Partition of Real Property

  2. Conversion

  3. Accounting

  4. Corporate Accounting

  5. Violation of Penal Code § 496(a)

  6. Constructive Trust

  7. Defamation

On March 26, 2018, NCI filed a “Notice of Stay of Proceedings,” advising therein of its Chapter 7 bankruptcy filing. On September 26, 2019, NCI filed an “Amended Notice of Stay of Proceedings.”

On October 21, 2019, the parties stipulated that KC053203 was related to this case.

The Final Status Conference is set for February 18, 2020. Trial is set for February 24, 2020.

1. Motion to Vacate Judgment

Legal Standard

A judgment means a judgment, order, or decree entered in a court of this state. (CCP § 680.230.) A money judgment, or a judgment for the possession or sale of property, is enforceable for a ten-year period following the date of entry, except as otherwise provided by statute. (CCP § 683.020(a).) The ten-year period for enforcing a money judgment or a judgment for the possession or sale of property may be extended by renewal of the judgment. (CCP § 683.110(a).)

A judgment creditor may renew a judgment by filing an application for renewal with the court that entered the judgment. (CCP § 683.120(a).) In the case of a money judgment, the application must include the information necessary to compute the amount of the judgment as renewed. In the case of a judgment for possession or sale of property the application must describe the performance remaining. (CCP § 683.140(d).)

On the timely filing of an application for renewal, the court clerk must enter the renewal of the judgment in the court records. (CCP § 683.150(a).) Entry of the renewal is a ministerial act. (Comment to CCP § 583.150.)

The judgment creditor must serve notice of renewal of the judgment in the form prescribed by the Judicial Council on the judgment debtor personally or by first-class mail. The notice must inform the debtor of the 30-day limit to file a motion to vacate or modify the renewal. (CCP § 683.160(a).) A copy of the application for renewal must be physically or electronically attached to the notice. (California Rules of Court Rule 3.1900.) The notice may be served after the ten-year period has expired if the application for renewal was timely filed. (Comment to CCP § 683.160.)

A judgment debtor may challenge the renewal by filing a motion to vacate or modify the renewed judgment. (CCP § 683.170(b).) The motion must be filed within 30 days after service of the notice of renewal. (Id.)

The judgment debtor has the burden of proving, by a preponderance of the evidence, that the debtor is entitled to relief from CCP § 683.170 from renewal of the judgment. (Fidelity Creditor Serv., Inc. v. Browne (2001) 89 Cal.App.4th 195, 199.) A judge may vacate the renewal on any ground that would be a defense to an action on the judgment. (CCP § 683.170(a).)

Discussion

Yee moves the court for an order vacating judgment.

Evidentiary Objections

The court previously OVERRULED Hon’s and Lai’s evidentiary objections filed October 21, 2019 in full.

Yee’s evidentiary objections as to Hon’s declaration are ruled on as follows: OVERRULED as to Nos. 1-5, 7 and 13; OVERRULED as to No. 6 in part (as to first sentence only) and otherwise SUSTAINED; OVERRULED as to No. 9 in part (as to first sentence only) and otherwise SUSTAINED; SUSTAINED as to Nos. 10 and 12; OVERRULED as to No. 11 in part (as to first sentence only) and otherwise SUSTAINED; SUSTAINED as to Nos. 14-15 and 17; OVERRULED as to No. 16 in part (as to first sentence only) and otherwise SUSTAINED.

Yee’s evidentiary objections as to Lai’s declaration are ruled on as follows: OVERRULED as to Nos. 1-5, 7 and 9; OVERRULED as to No. 6 in part (as to first sentence only) and otherwise SUSTAINED; OVERRULED as to No. 8 in part (as to first sentence only) and otherwise SUSTAINED;

Merits

On September 21, 2009, Interlocutory Judgment for Partition by Sale (“Interlocutory Judgment”) was filed. The Interlocutory Judgment determined, in relevant part, that Hon, Lai and Yee were the owners as joint tenants, of a fee simple interest in the Hacienda Heights Property, that Hon, Lau and Yee each owned an undivided one-third interest in the Hacienda Heights Property, that all of the loans secured by deeds of trusts with the exception of a 9-8-1994 Deed of Trust (i.e., “First Deed of Trust”) were to be paid out of the residue of the proceeds from the sale of the Hacienda Heights Property due to Yee, that all of the underlying debts for abstracts of judgment appearing in the title record for the Hacienda Heights Property were to be paid out of the residue of the proceeds from the sale of the Hacienda Heights Property due to Yee, that the Hacienda Heights Property should be sold and the proceeds divided among the parties according to their respective interests and as delineated therein, that Jerry Wang was appointed as referee with authority to sell the Hacienda Heights Property at a private sale or at public auction to the highest bidder for cash, that Wang, after selling the Hacienda Heights Property. Was directed to report to the court on the sale proceedings and, on confirmation of the sale by the court and on payment of the purchase price, was authorized and directed to execute and deliver a deed of the Hacienda Heights Property to the buyer and that proceeds from the sale of the Hacienda Heights Property would be applied, after confirmation of the sale, as follows: to pay the balance owing on the loan secured by the First Deed of Trust, to pay the expenses of the sale, to pay other costs of partition or secure any cost of partition later allows, to pay Hon and Lai for expenditures of property taxes and secured purchase money loan payments in the amount of $302,616.89 and property improvements in the amount of $88,952.74 and to distribute the residue amongst the parties in proportion to their shares.

On June 6, 2019, Hon and Lai filed an Application for and Renewal of Judgment; it had been mail-served on Yee’s counsel on June 5, 2019. The Application referred to the $391,569.63 in the Interlocutory Judgment as a “money judgment” and also sought a renewal of judgment for sale. On September 23, 2019, the Notice of Renewal of Judgment was filed by the court.

At the outset, Yee contends that Hon and Lai cannot renew the Interlocutory Judgment, because it is not a final judgment. However, CCP § 872.720(a) provides that “[i]f the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition. An interlocutory judgment in partition is only a determination of the respective interests of the parties, preliminary to final judgment. (Harrington v. Goldsmith (1902) 136 Cal. 168.) It is final on the questions adjudicated in it and it to all intents and purposes a final judgment from which an appeal may be taken though it is not the last judgment entered in the action. (Pista v. Resetar (1928) 205 Cal. 197.) CCP § 904.1(a)(9), in fact, expressly permits an appeal, other than in a limited civil case, to be taken from an interlocutory judgment in an action for partition determining the rights and interests of the respective parties and directing partition to be made. As to such final matters, the interlocutory judgment may not be modified by the final judgment. (Thompson v. White (1888) 76 Cal. 381.)[3] Based on this authority, then, as well as on the fact that the Interlocutory Judgment is a judgment for the sale of property, it appears to the court that the Interlocutory Judgment is renewable. The court, however, agrees that the Interlocutory Judgment did not consist of a “money judgment” as well, in that the $391,569.63 referenced therein was the amount Hon and Lai were to be given from the proceeds from any sale of the Hacienda Heights Property as reimbursement for certain expenditures made on the Hacienda Heights Property.

Next, Yee contends that the application for renewal was not properly served upon him. There is no requirement that the application be served upon him, however. Yee’s citation to CCP § 683.160 refers to the notice of renewal,. Hon and Lai likewise attached a copy of the notice of renewal and their proof of service regarding same, which reflects that it was personally served on Yee’s counsel on September 25, 2019. (Burnet Decl., ¶3, Exh. A.) Although CCP § 683.160 provides that the notice of renewal is to be made personally or by first class mail on the judgment debtor, Yee has not articulated any prejudice caused by the service of same on his counsel.

Yee then contends that renewal of the judgment must be vacated on the basis of improper service. Because the failure to serve the summons and complaint on the debtor is a defense to an action on the judgment, it also constitutes grounds for vacating renewal of the judgment. (Fidelity Creditor, supra, 89 Cal.App.4th at 201-203, 207.) Hon’s and Lai’s contention that the motion to vacate is untimely on the basis of CCP § 473.5 fails. “[A] motion under section 683.170 is not one for relief from default or default judgment and is not governed by section 473.5.” (Id. at 204.) Further, a defendant’s actual knowledge of the judgment for some years prior to filing a motion to vacate the renewal does not make the motion untimely. Actual knowledge does not commence the running of the 30-day period. (Id.) Also, when the motion is made on the ground that the debtor was never served in the underlying action, the debtor is not required to establish that the debtor has a meritorious defense to the action in order to be entitled to an order vacating a renewal of the judgment. (Id. at 204-205.)

In this case, on December 8, 2008, Peng Gao (“Gao”), then-counsel for Hon and Lai, filed a “Declaration on Previous service of Summons and Complaints.” (Soriano Decl., ¶4, Exh. C.) Gao advised that service of the summons and complaint on Yee by the Los Angeles County Sheriff (i.e., on the Hacienda Heights Property address) failed on or about September 30, 2008. (Id., ¶2.) On Hon’s request counsel prepared the Judicial Council form POS-010 “with blank on certain areas” and on or about October 18, 2008 received the signed proof of service from Hon, which he filed or about October 22, 2008. (Id., ¶¶3-5, Exh. B.) On or about December 3, 2008, counsel filed a “Request for Entry of Default” as to Yee and a “Notice of Motion and Motion to be Relieved as Counsel.” (Id., ¶6.) On or about December 5, 2008, Gao received a phone call from Yee, who claimed he had been in San Francisco for a period of time. (Id., ¶7.) Counsel “became alert as to the validity of the proof of service of the summons on. . . Yee and immediately called Sid Clayman at the number on the POS and learned the number had been changed to (818) 345-0018.” (Id.) The person who claimed to be Sid Clayman also claimed that he did not serve Yee at the time and he had nothing to do with it, and he had closed the office at 719 S. Los Angeles St., #1120, Los Angeles, CA 90014 since 2007. (Id.) Gao immediately called the court clerk to withdraw the previously filed “Request for Entry of Default” against Yee. (Id.)

Hon and Lai filed an application for publication as to Yee on April 28, 2019, which was accompanied by the Declaration of Richard Leung. On April 28, 2009, an Order for Publication was filed as to Yee. On June 1, 2009, Proof of Publication was filed as to Yee.

Yee attests that in 2007, Hon and Lai took a trip to China and did not return when expected. (Yee Decl., ¶3.) During that time, Yee found that he had been removed from the accounts for NCI and was therefore unable to operate the business and/or pay for his own living expenses during their absence. (Id.) Yee left a note at the property where Hon, Lai and Yee had been living together, informing them that he was staying with his sister in San Francisco and asking them to contact him when they returned. (Id.) Yee never heard from them again. (Id.) In and around January 2009, Yee was still living in the San Francisco Bay Area. (Id., ¶4.) Hon had met Yee’s sister and knew how to contact Yee’s sister, but never did. (Id.) Hon also knew Yee’s relative, Kung Yee, who lived within 1-2 miles of the Hacienda Heights Property. (Id.) Kung Yee knew Yee was staying with his sister in the San Francisco Bay Area during 2009 and always knew how to contact Yee. (Id.)

On November 1, 2019, the court continued the hearing and instructed Yee to file a supplemental declaration specifically responding to the efforts Leung detailed in his April 28, 2019 declaration to locate Yee for service of process. Yee was instructed to identify his sister’s name and address at the time of the application for publication, to provide his address at the time of the application for publication and to clarify whether or not he provided Hon and Lai with his sister’s name and address in the note he left for them. Yee was instructed to explain how Hon allegedly “knew how to contact” his sister. Yee was also instructed to address the phone call on or about December 5, 2008 referenced in Gao’s “Declaration on Previous service of Summons and Complaints” filed on December 8, 2008; more specifically, Yee was requested to confirm whether or not that telephone conversation transpired, why he contacted Gao and whether or not Gao requested Plaintiff’s address for service of the summons and complaint during this conversation.

On November 13, 2019, Yee filed his supplemental declaration. Yee attests that after being locked out of the bank accounts and operations of the business during the summer of 2007, he returned to San Francisco, Lonnie Yee, at her residence at 2310 40th Avenue in San Francisco. (Yee Supp. Decl., ¶3.) Yee lived at his sister’s residence from approximately October 2007 through the first half of 2009 and got a minimum wage job at a dry-cleaning business. (Id.) Yee moved out of his sister’s home to a studio apartment on Larkin Street in the Tenderloin neighborhood of San Francisco around the summer of 2009. (Id.) In 2007, when Yee left the residence where he had been living with Plaintiffs, Yee left Plaintiffs notes to contact him upon their return from China. (Id., ¶4.) Yee left one note in the bedroom he shared with Hon and another on the dining room table. (Id.) The notes explained that Yee had returned to San Francisco to stay with Lonnie Yee and included Yee’s cell phone number. (Id.)

Yee attests that Hon had met Lonnie Yee when they were living in San Francisco before purchasing the Hacienda Heights Property and transferring their business to Los Angeles, and that Hon had socialized with Lonnie Yee “on numerous occasions” during that time period. (Id., ¶5.) Hon had also met Yee’s three brothers and his other sister, as well as Yee’s aunt Elaine Yee and multiple cousins, all of whom lived in the Bay Area. (Id., ¶6.) Hon and Yee attended numerous social dinners and holiday parties with his family members and friends in San Francisco for years before they moved to Los Angeles, including his brother, Edmund Yee’s, wedding banquet in March 1994, his brother, Arthur Yee’s, Christmas party and his cousin, Jean Yee’s, Thanksgiving dinner. (Id.) All of these relatives knew where Yee was staying and how to reach Yee from the time Yee moved out of the Hacienda Heights Property to the present. (Id.) Yee is informed and believes hon knew how to contact all of his relatives as Hon had contacted them in the past and she knew their names and were they lived. (Id.)

Yee attests that he and Hon had socialized with and borrowed money from Yee’s cousins Betsy and Arnold Yee and cousins John and Diane Gon. (Id., ¶7.) Hon had paperwork concerning the loans and could have contacted any of these individuals, who always knew how to contact Yee and where to find Yee. (Id.) Hon also knew Yee’s friend, Munson Fong (“Fong”). (Id., ¶8.) Yee and Hon had borrowed money from Fong and socialized with Fong frequently when they lived in San Francisco and occasionally after they moved to Los Angeles. (Id.) Fong once traveled to Las Vegas with Yee and Hon and met with Yee’s and Hon’s realtor, Amy Zhang (“Zhang”), about the possibility of investing in the real estate Yee and Hon purchased in that city. (Id.) Fong always knew how to contact Yee and where to find Yee and Yee believes Hon had Fong’s contact information both personally and on paperwork concerning Fong’s loan to them. (Id.) Hon and Lai had both socialized with Yee’s cousin, Kung Yee, who lived approximately 1-2 miles from the Hacienda Heights Property. (Id., ¶9.) Before buying the Hacienda Heights Property, Hon and Yee lived in motels in Los Angeles for approximately one month; during that time, they spent every weekend having dinner with Kung Yee and his wife Judy at their house watching movies. (Id., ¶10.) Hon and Yee went there at least 5 or 6 times before moving into the Hacienda Heights Property. (Id.) After the move, Hon and Yee continued to socialize with them, including visits to their home. (Id.)

Yee attests that when he left the Hacienda Heights Property in 2007, they had a desk in the house with a phone and a rolodex with index cards with the phone numbers, and sometimes addresses, of all of their friends, family and business contacts; this included contact information for most, if not all, of Yee’s relatives mentioned. (Id., ¶11.) The San Mateo address identified by Leung in his declaration was the location of the office for the lawyer, Jeffrey Tsu, that Yee and Hon had hired to defend Hon’s business in San Francisco from an unlawful detainer action. (Id., ¶12, Exh. A.) Of all the properties listed in ¶¶ 13 and 20 of Leung’s declaration, Yee only has ever had an ownership interest in the Hacienda Heights Property. (Id., ¶12.)

Yee attests that, prior to Hon’s and Lai’s trip to China in the summer of 2007, Hon had given Yee a business card for Gao, who they had hired to assist them with some legal matters concerning the clothing business. (Id., ¶14.) At the time Hon made some “puzzling remarks” suggesting that Yee move to Las Vegas and drive a taxi, which Yee did not understand. (Id.) Hon refused to explain or expand on them and Yee attributed the remarks to Hon being in a bad mood. (Id.) Towards the end of 2008 when Yee was preparing to move out of his sister’s house, Yee found Gao’s business card and decided to call Gao to see if he could explain what was going on with Hon and the business. (Id., ¶15.) Gao seemed surprised to receive Yee’s call. After Yee identified himself, Gao began questioning Yee if Yee had been in China earlier in the year. (Id.) Yee told Gao that he had not been to China. (Id.) Gao asked Yee where Yee had been since the fall of 2007 and Yee told Gao that he had been in San Francisco the entire time. (Id.) Gao asked Yee what Yee had been doing and Yee told Gao that he had to get a job at a dry-cleaners as he had no access to any money. (Id.) Gao asked Yee again if Yee had been to China at any time since leaving the Hacienda Heights Property in 2007 and Yee told Gao he had not. (Id.) Gao did not provide any information about Hon or the business. (Id.) Gao told Yee that if Yee hired a lawyer Yee could have that person contact Gao. (Id.) At no time before ending the call did Gao inform Yee about the partition action or ask Yee about an address for being served with any complaint or lawsuit. (Id.)

Hon, in turn, has submitted a declaration wherein she attests that on or about April 5, 2007, Hon and Lai met with Yee and Hon’s prior attorney, Pao Geng (“Geng”), at Geng’s office in Monterey Park to resolve a legal matter. (Hon Decl., ¶6.) Geng and Gao appear to be the same individual. (See ¶¶6 and 23.) Yee became upset and left. (Id.) That evening, Hon found a note from Yee indicating that Yee had taken Hon’s Toyota 4runner to San Francisco and would be back in approximately 5-6 days. (Id.) About a week later, Yee dropped the Toyota 4runner off at the Hacienda Heights Property, drove off in his own car, and never returned. (Id., ¶7.) Lai and Hon did not go to China during the summer of 2007; rather, Lai and Hon returned to Los Angeles from Hong Kong at the end of 2006 and have been living at the Hacienda Heights Property ever since. (Id., ¶¶8 and 20.) Yee never contacted Hon and never mentioned that he was living in Lonnie Yee’s home in San Francisco. (Id., ¶7.) Hon never knew Yee’s whereabouts or address after Yee left the Hacienda Heights Property. (Id.) Hon does not know Lonnie Yee, and Hon does not know Lonnie Yee’s address. (Id.) Yee did not leave Hon any note indicating his contact information and address. (Id., ¶8.) Before 1994, Hon was in a short-term relationship with Yee, for about 1 year, while they lived in San Francisco. (Id., ¶9.) During the short-term relationship Hon had with Yee, Hon attended family gatherings with Yee and his family, but only once or twice, and merely as a regular friend. (Id., ¶10.) Yee always communicated with his relatives using their hometown dialect/language (Taishanese) that Hon could not understand; Hon speaks Mandarin. (Id.) Hon did not know their relationship with Yee. (Id.)

Hon attests that from the time Hon left San Francisco, prior to 1994, when the Hacienda Heights Property was purchased, Hon did not know Yee’s address. (Id., ¶11.) Other than the one or two gatherings of Yee’s family that Hon attended in San Francisco, Hon never knew the address of any of Yee’s relatives or friends. (Id.) Hon never contacted Yee’s relatives and friends since the first time Hon met Yee. (Id.) Hon never borrowed money from Yee’s relatives. (Id., ¶12.)

Hon attests that she did not, and does not, know Kung Yee or Betty Yee at all, nor did she ever know Judy Yee. (Id., ¶13.) At no time has Hon known where Kung Yee and Judy Yee lived. (Id.) Hon has never borrowed money from them. (Id.) Although Hon met Fong once or twice, she never borrowed money from Fong or went to Las Vegas with him. (Id., ¶14.) Hon does not have any knowledge of any meeting between Fong and Zhang. (Id.) Fong was Yee’s friend, not Hon’s. (Id.) Hon has never contacted Fong and does not know Fong’s contact information. (Id.) Yee’s claim about a rolodex box is false; there was no contact information of Yee and Yee’s relatives/friends at the hacienda Heights Property. (Id., ¶16.) Yee removed most of his personal property and documents that were related to him when he disappeared in 2007. (Id.) Hon does not know any of Yee’s family members, nor does she know their contact information. (Id., ¶18.)

Lai has submitted a declaration, wherein he confirms that he was present at the meeting held on or about April 5, 2007 with Hon, Yee and Geng, that Yee became upset and left, that he and Hon found a note that evening from Yee indicating that he had taken Hon’s Toyota 4runner to San Francisco and would be back in approximately 5-6 days, and that Yee dropped the Toyota 4runner off at the Hacienda Heights Property about a week later, drove off in his own car and never returned. (Lai Decl., ¶¶4-5.) Yee never contacted Lai and never mentioned that he was living in Lonnie Yee’s home in San Francisco. (Id.) Lai never new Yee’s whereabouts or address after Yee left the Hacienda Heights Property. (Id.) Lai does not know and has never met Lonnie Yee and he does not know her address. (Id.) To Lai’s knowledge, Yee did not leave any note indicating his contact information and address. (Id.) Yee’s rolodex box claim is false. (Id., ¶7.) Lai does not know any of Yee’s family members, nor does he know their contact information. (Id., ¶8.) Lai has never met Lonnie Yee and does not know her at all, nor does he know Kung Yee, Betty Yee, or Judy Yee. (Id., ¶9.) Hon and Lai did not go to China during the summer of 2007. (Id., ¶10.)

The court remains troubled by the circumstances surrounding the execution and submission of Attachment B to Gao’s December 8, 2008 “Declaration on Previous Service of Summons and Complaint.” The court finds Yee’s declaration regarding the circumstances surrounding his departure from the Hacienda Heights Property in 2007 and Hon’s ability to make contact with Yee’s friends and/or family members more credible than the declarations submitted by Hon and Lai. Accordingly, the motion is GRANTED.

2. Motion to Tax Costs

Yee’s Motion to Tax Costs is TAKEN OFF-CALENDAR as MOOT, based upon the ruling made above.


[1] Motion #1 was filed and overnight mail-served on October 4, 2019 and originally set for hearing on November 1, 2019. Motion #2 was filed and mail-served on June 17, 2019 and originally set for hearing on October 23, 2019. On October 10, 2019, the court rescheduled the hearing on Motion #2 to November 1, 2019. On November 1, 2019, the court continued the hearing to December 13, 2019, with the following briefing schedule set: Defendant’s declaration due November 15, 2019. Plaintiff’s response due December 6, 2019. Plaintiff’s counsel was ordered to give notice. On November 4, 2019, Plaintiff’s counsel filed and mail-served a “Rulings After Hearing,” advising of the reset December 13, 2019 hearing date. On December 6, 2019, the court rescheduled the December 13, 2019 hearing to December 30, 2019.

[2] On October 21, 2019, Plaintiffs timely filed and served their opposition for the November 1, 2019 hearing, along with objections. On October 22, 2019, Plaintiffs untimely filed amended objections, which were mail-served on October 21, 2019 in contravention of CCP § 1005(c). On October 23, 2019, Plaintiffs untimely filed a supplemental opposition and mail-served same that day, in contravention of CCP § 1005(c). The court, in its previous tentative ruling issued in connection with the November 1, 2019 hearing, declined to consider the October 22, 2019 and October 23, 2019 filings. They are likewise not considered by the court at this time.

[3][3] Hon and Lai cite to CCP § 963 for the proposition that “an interlocutory decree in a partition suit is a final judgment.” (Opposition, 2:5-7.) CCP § 963, however, was repealed by Stats. 1968, c. 385, p. 811, §1.

Case Number: KC053203    Hearing Date: November 01, 2019    Dept: J

HEARING DATE: Friday, November 1, 2019

NOTICE: Motions #1 & #2: OK

RE: Hon, et al. v. Yee, et al. (KC053203; R/T Case No. KC068890)

______________________________________________________________________________

1. Defendant Herman Yee’s MOTION TO VACATE JUDGMENT

Responding Party: Plaintiffs, Ann Hon and Charles Lai[1]

2. Defendant Herman Yee’s MOTION TO TAX COSTS

Responding Party: Plaintiffs, Ann Hon and Charles Lai

Tentative Ruling

The hearing on Defendant Herman Yee’s Motion to Vacate Judgment and Defendant Herman Yee’s Motion to Tax Costs is CONTINUED to_____________________________.

Background

Case No. KC053203

Plaintiffs Ann Hon (“Hon”) and Charles Lai (“Lai”) collectively own an undivided two-thirds interest as tenants in common in the property located at 1446 Cabinda Drive, Hacienda Heights, California 91745 (“Hacienda Heights Property”); Herman Yee (“Yee”) owns the remaining undivided one-third interest as a tenant in common in same. Plaintiffs seek a partition by sale of the Hacienda Heights Property. On June 19, 2008, Hon and Lai filed a complaint, asserting causes of action against Defendants Yee, Golden West Savings Association Service Co. (“Golden West”), Wilshire Equities Corporation (“Wilshire”), Title Insurance and Trust Company (“Title Insurance”), Jeffrey C. Tsu (“Tsu”), Asta Funding Acquisition (“Asta”), First Select Corporation (“FSC”), Orange Coast Title Company (“Orange Coast”), Does 1-50 and All Persons Unknown Claiming Any Interest in the Property (“All Persons”) for:

  1. Partition of Real Property

On September 26, 2008, Orange Coast filed a Declaration of Non-Monetary Status. On November 6, 2008, Hon and Lai dismissed Title Insurance, FSC, Wilshire and Asta without prejudice. On November 13, 2008, Hon and Lai dismissed Tsu and Golden West without prejudice.

On April 28, 2009, an Order for Publication was filed as to Yee. On June 1, 2009, Proof of Publication was filed as to Yee.

On August 28, 2009, Yee’s default was entered. On September 21, 2009, Hon and Lai dismissed All Persons without prejudice. On September 21, 2009, Interlocutory Judgment for Partition by Sale was filed.

On June 6, 2019, Hon and Lai filed an Application for and Renewal of Judgment, as well as a Memorandum of Costs After Judgment, Acknowledgment of Credit and Declaration of Accrued Interest.

On September 23, 2019, Hon and Lai filed a Notice of Renewal of Judgment.

 

Case No. KC053203

Yee seeks to partition the Hacienda Heights Property, as well as the property located at 111 E. Emerson Avenue in Monterey Park, California (“Monterey Park Property). Yee has alleged that Hon and Lai committed a fraud upon the court in Case No. KC053203 by claiming that Yee could not be located, that his whereabouts were unknown, and that service upon him could only be made via publication. Yee has alleged that Lai made false statements in a declaration regarding the origins of various liens on the Hacienda Heights Property and that a default was entered against Yee on August 28, 2009. Yee has alleged that despite the court’s entry of default and order for partition, it appears that the Hacienda Heights Property was never sold. Yee also seeks 50% ownership in NCI Apparel, Inc. (“NCI”) and requests an accounting. On November 23, 2016, Yee filed a complaint, asserting causes of action against Hon, Lai, NCI and Does 1-100 for:

  1. Partition of Real Property

  2. Conversion

  3. Accounting

  4. Corporate Accounting

  5. Violation of Penal Code § 496(a)

  6. Constructive Trust

  7. Defamation

On March 26, 2018, NCI filed a “Notice of Stay of Proceedings,” advising therein of its Chapter 7 bankruptcy filing. On September 26, 2019, NCI filed an “Amended Notice of Stay of Proceedings.”

On October 21, 2019, the parties stipulated that KC053203 was related to this case.

The Final Status Conference is set for February 18, 2020. Trial is set for February 24, 2020.

1. Motion to Vacate Judgment

Legal Standard

A judgment means a judgment, order, or decree entered in a court of this state. (CCP § 680.230.) A money judgment, or a judgment for the possession or sale of property, is enforceable for a ten-year period following the date of entry, except as otherwise provided by statute. (CCP § 683.020(a).) The ten-year period for enforcing a money judgment or a judgment for the possession or sale of property may be extended by renewal of the judgment. (CCP § 683.110(a).)

A judgment creditor may renew a judgment by filing an application for renewal with the court that entered the judgment. (CCP § 683.120(a).) In the case of a money judgment, the application must include the information necessary to compute the amount of the judgment as renewed. In the case of a judgment for possession or sale of property the application must describe the performance remaining. (CCP § 683.140(d).)

On the timely filing of an application for renewal, the court clerk must enter the renewal of the judgment in the court records. (CCP § 683.150(a).) Entry of the renewal is a ministerial act. (Comment to CCP § 583.150.)

The judgment creditor must serve notice of renewal of the judgment in the form prescribed by the Judicial Council on the judgment debtor personally or by first-class mail. The notice must inform the debtor of the 30-day limit to file a motion to vacate or modify the renewal. (CCP § 683.160(a).) A copy of the application for renewal must be physically or electronically attached to the notice. (California Rules of Court Rule 3.1900.) The notice may be served after the ten-year period has expired if the application for renewal was timely filed. (Comment to CCP § 683.160.)

A judgment debtor may challenge the renewal by filing a motion to vacate or modify the renewed judgment. (CCP § 683.170(b).) The motion must be filed within 30 days after service of the notice of renewal. (Id.)

The judgment debtor has the burden of proving, by a preponderance of the evidence, that the debtor is entitled to relief from CCP § 683.170 from renewal of the judgment. (Fidelity Creditor Serv., Inc. v. Browne (2001) 89 Cal.App.4th 195, 199.) A judge may vacate the renewal on any ground that would be a defense to an action on the judgment. (CCP § 683.170(a).)

Discussion

Yee moves the court for an order vacating judgment.

Evidentiary Objections

The court rules on Hon’s and Lai’s evidentiary objections as follows: OVERRULE in full.

Merits

On September 21, 2009, Interlocutory Judgment for Partition by Sale (“Interlocutory Judgment”) was filed. The Interlocutory Judgment determined, in relevant part, that Hon, Lai and Yee were the owners as joint tenants, of a fee simple interest in the Hacienda Heights Property, that Hon, Lau and Yee each owned an undivided one-third interest in the Hacienda Heights Property, that all of the loans secured by deeds of trusts with the exception of a 9-8-1994 Deed of Trust (i.e., “First Deed of Trust”) were to be paid out of the residue of the proceeds from the sale of the Hacienda Heights Property due to Yee, that all of the underlying debts for abstracts of judgment appearing in the title record for the Hacienda Heights Property were to be paid out of the residue of the proceeds from the sale of the Hacienda Heights Property due to Yee, that the Hacienda Heights Property should be sold and the proceeds divided among the parties according to their respective interests and as delineated therein, that Jerry Wang was appointed as referee with authority to sell the Hacienda Heights Property at a private sale or at public auction to the highest bidder for cash, that Wang, after selling the Hacienda Heights Property. Was directed to report to the court on the sale proceedings and, on confirmation of the sale by the court and on payment of the purchase price, was authorized and directed to execute and deliver a deed of the Hacienda Heights Property to the buyer and that proceeds from the sale of the Hacienda Heights Property would be applied, after confirmation of the sale, as follows: to pay the balance owing on the loan secured by the First Deed of Trust, to pay the expenses of the sale, to pay other costs of partition or secure any cost of partition later allows, to pay Hon and Lai for expenditures of property taxes and secured purchase money loan payments in the amount of $302,616.89 and property improvements in the amount of $88,952.74 and to distribute the residue amongst the parties in proportion to their shares.

On June 6, 2019, Hon and Lai filed an Application for and Renewal of Judgment; it had been mail-served on Yee’s counsel on June 5, 2019. The Application referred to the $391,569.63 in the Interlocutory Judgment as a “money judgment” and also sought a renewal of judgment for sale. On September 23, 2019, the Notice of Renewal of Judgment was filed by the court.

At the outset, Yee contends that Hon and Lai cannot renew the Interlocutory Judgment, because it is not a final judgment. However, CCP § 872.720(a) provides that “[i]f the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition. An interlocutory judgment in partition is only a determination of the respective interests of the parties, preliminary to final judgment. (Harrington v. Goldsmith (1902) 136 Cal. 168.) It is final on the questions adjudicated in it and it to all intents and purposes a final judgment from which an appeal may be taken though it is not the last judgment entered in the action. (Pista v. Resetar (1928) 205 Cal. 197.) CCP § 904.1(a)(9), in fact, expressly permits an appeal, other than in a limited civil case, to be taken from an interlocutory judgment in an action for partition determining the rights and interests of the respective parties and directing partition to be made. As to such final matters, the interlocutory judgment may not be modified by the final judgment. (Thompson v. White (1888) 76 Cal. 381.)[2] Based on this authority, then, as well as on the fact that the Interlocutory Judgment is a judgment for the sale of property, it appears to the court that the Interlocutory Judgment is renewable. The court, however, agrees that the Interlocutory Judgment did not consist of a “money judgment” as well, in that the $391,569.63 referenced therein was the amount Hon and Lai were to be given from the proceeds from any sale of the Hacienda Heights Property as reimbursement for certain expenditures made on the Hacienda Heights Property.

Next, Yee contends that the application for renewal was not properly served upon him. There is no requirement that the application be served upon him, however. Yee’s citation to CCP § 683.160 refers to the notice of renewal,. Hon and Lai likewise attached a copy of the notice of renewal and their proof of service regarding same, which reflects that it was personally served on Yee’s counsel on September 25, 2019. (Burnet Decl., ¶3, Exh. A.) Although CCP § 683.160 provides that the notice of renewal is to be made personally or by first class mail on the judgment debtor, Yee has not articulated any prejudice caused by the service of same on his counsel.

Yee then contends that renewal of the judgment must be vacated on the basis of improper service. Because the failure to serve the summons and complaint on the debtor is a defense to an action on the judgment, it also constitutes grounds for vacating renewal of the judgment. (Fidelity Creditor, supra, 89 Cal.App.4th at 201-203, 207.) Hon’s and Lai’s contention that the motion to vacate is untimely on the basis of CCP § 473.5 fails. “[A] motion under section 683.170 is not one for relief from default or default judgment and is not governed by section 473.5.” (Id. at 204.) Further, a defendant’s actual knowledge of the judgment for some years prior to filing a motion to vacate the renewal does not make the motion untimely. Actual knowledge does not commence the running of the 30-day period. (Id.) Also, when the motion is made on the ground that the debtor was never served in the underlying action, the debtor is not required to establish that the debtor has a meritorious defense to the action in order to be entitled to an order vacating a renewal of the judgment. (Id. at 204-205.)

In this case, on December 8, 2008, Peng Gao (“Gao”), then-counsel for Hon and Lai, filed a “Declaration on Previous service of Summons and Complaints.” (Soriano Decl., ¶4, Exh. C.) Gao advised that service of the summons and complaint on Yee by the Los Angeles County Sheriff (i.e., on the Hacienda Heights Property address) failed on or about September 30, 2008. (Gao Decl., ¶2.) On Hon’s request counsel prepared the Judicial Council form POS-010 “with blank on certain areas” and on or about October 18, 2008 received the signed proof of service from Hon, which he filed or about October 22, 2008. (Id., ¶¶3-5, Exh. B.) On or about December 3, 2008, counsel filed a “Request for Entry of Default” as to Yee and a “Notice of Motion and Motion to be Relieved as Counsel.” (Id., ¶6.) On or about December 5, 2008, Gao received a phone call from Yee, who claimed he had been in San Francisco for a period of time. (Id., ¶7.) Counsel became alert as to the validity of the proof of service of the summons on Yee and immediately called Sid Clayman at the number on the proof of service and learned the number had been changed to (818) 345-0018. (Id.) The person who claimed to be Sid Clayman also claimed that he did not serve Yee at the time and he had nothing to do with it, and he had closed the office at 719 S. Los Angeles St., #1120, Los Angeles, CA 90014 since 2007. (Id.) Gao immediately called the court clerk to withdraw the previously filed “Request for Entry of Default” against Yee. (Id.)

Hon and Lai filed an application for publication as to Yee on April 28, 2019, which was accompanied by the Declaration of Richard Leung. On April 28, 2009, an Order for Publication was filed as to Yee. On June 1, 2009, Proof of Publication was filed as to Yee.

Yee attests that in 2007, Hon and Lai took a trip to China and did not return when expected. (Yee Decl., ¶3.) During that time, Yee found that he had been removed from the accounts for NCI and was therefore unable to operate the business and/or pay for his own living expenses during their absence. (Id.) Yee left a note at the property where Hon, Lai and Yee had been living together, informing them that he was staying with his sister in San Francisco and asking them to contact him when they returned. (Id.) Yee never heard from them again. (Id.) In and around January 2009, Yee was still living in the San Francisco Bay Area. (Id., ¶4.) Hon had met Yee’s sister and knew how to contact Yee’s sister, but never did. (Id.) Hon also knew Yee’s relative, Kung Yee, who lived within 1-2 miles of the Hacienda Heights Property. (Id.) Kung Yee knew Yee was staying with his sister in the San Francisco Bay Area during 2009 and always knew how to contact Yee. (Id.)

The hearing on the motion is continued to ___________________________. Yee is instructed to file a supplemental declaration specifically responding to the efforts Leung details in his April 28, 2019 declaration to locate Yee for service of process. Yee is instructed to identify his sister’s name and address at the time of the application for publication, to provide his address at the time of the application for publication and to clarify whether or not he provided Hon and Lai with his sister’s name and address in the note he left for them. Yee should explain how Hon allegedly “knew how to contact” his sister. Yee should also address the phone call on or about December 5, 2008 referenced in Gao’s “Declaration on Previous service of Summons and Complaints” filed on December 8, 2008; more specifically, Yee is requested to confirm whether or not that telephone conversation transpired, why he contacted Gao and whether or not Gao requested Plaintiff’s address for service of the summons and complaint during this conversation.

2. Motion to Tax Costs

The hearing on the motion is continued to ___________________________, based on the above analysis.


[1] On October 21, 2019, Plaintiffs timely filed and served their opposition, along with objections. On October 22, 2019, Plaintiffs untimely filed amended objections, which were mail-served on October 21, 2019 in contravention of CCP § 1005(c). On October 23, 2019, Plaintiffs untimely filed a supplemental opposition and mail-served same that day, in contravention of CCP § 1005(c). The court declines to consider the October 22, 2019 and October 23, 2019 filings.

[2][2] Hon and Lai cite to CCP § 963 for the proposition that “an interlocutory decree in a partition suit is a final judgment.” (Opposition, 2:5-7.) CCP § 963, however, was repealed by Stats. 1968, c. 385, p. 811, §1.