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This case was last updated from Los Angeles County Superior Courts on 06/12/2019 at 17:09:30 (UTC).

ATOMIC CONTAINER HOMES, INC. VS ASHLEY MYUNG SHIN KIM

Case Summary

On 11/13/2017 ATOMIC CONTAINER HOMES, INC filed a Contract - Other Contract lawsuit against ASHLEY MYUNG SHIN KIM. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are LISA HART COLE and BOBBI TILLMON. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8363

  • Filing Date:

    11/13/2017

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LISA HART COLE

BOBBI TILLMON

 

Party Details

Plaintiff

ATOMIC CONTAINER HOMES INC.

Defendant

KIM ASHLEY MYUNG SHIN

Attorney/Law Firm Details

Plaintiff Attorney

CUMMING WILLIAM R.

 

Court Documents

Unknown

8/22/2018: Unknown

Declaration

9/5/2018: Declaration

Unknown

9/5/2018: Unknown

Other -

9/5/2018: Other -

Request for Dismissal

9/5/2018: Request for Dismissal

Declaration

9/5/2018: Declaration

Request for Entry of Default / Judgment

9/5/2018: Request for Entry of Default / Judgment

Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

1/17/2019: Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

Writ of Execution

1/17/2019: Writ of Execution

Abstract of Judgment?Civil and Small Claims

1/17/2019: Abstract of Judgment?Civil and Small Claims

Unknown

2/20/2019: Unknown

Writ of Execution

2/21/2019: Writ of Execution

 

Docket Entries

  • 02/21/2019
  • Writ of Execution; Filed by ATOMIC CONTAINER HOMES, INC. (Plaintiff)

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  • 02/20/2019
  • Writ - Return

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  • 01/17/2019
  • Writ of Execution; Filed by ATOMIC CONTAINER HOMES, INC. (Plaintiff)

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  • 01/17/2019
  • Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest; Filed by ATOMIC CONTAINER HOMES, INC. (Plaintiff)

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  • 01/17/2019
  • Abstract of Judgment - Civil and Small Claims; Filed by ATOMIC CONTAINER HOMES, INC. (Plaintiff)

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  • 09/12/2018
  • at 08:31 AM in Department O; (Order to Show Cause; Advanced to this date & continued) -

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  • 09/12/2018
  • Notice Re: Continuance of Hearing and Order; Filed by Clerk

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  • 09/12/2018
  • NOTICE OF CONTINUANCE; Filed by Clerk

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  • 09/05/2018
  • Default Judgment; Filed by Attorney for Plaintiff

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  • 09/05/2018
  • Request for Entry of Default / Judgment

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34 More Docket Entries
  • 02/15/2018
  • Request for Entry of Default (AS TO: ASHLEY MYUNG SHIN KIM, AN INDIVIDUAL - RECEIVED ); Filed by Attorney for Plaintiff

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  • 02/15/2018
  • Default Entered; Filed by ATOMIC CONTAINER HOMES, INC. (Plaintiff)

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  • 02/15/2018
  • Default Entered (AS TO: ASHLEY MYUNG SHIN KIM, IND. ENTERED ); Filed by Attorney for Plaintiff

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  • 02/15/2018
  • Request for Entry of Default / Judgment; Filed by ATOMIC CONTAINER HOMES, INC. (Plaintiff)

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  • 01/18/2018
  • Proof-Service/Summons; Filed by ATOMIC CONTAINER HOMES, INC. (Plaintiff)

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  • 01/18/2018
  • Proof-Service/Summons; Filed by Attorney for Plaintiff

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  • 11/13/2017
  • Complaint Filed

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  • 11/13/2017
  • Complaint; Filed by ATOMIC CONTAINER HOMES, INC. (Plaintiff)

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  • 11/13/2017
  • Summons; Filed by Plaintiff

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  • 11/13/2017
  • Summons Filed; Filed by Attorney for Plaintiff

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Tentative Rulings

Case Number: SC128363    Hearing Date: July 16, 2020    Dept: O

Case Name: Atomic Container Homes, Inc. v. Kim, et al.

Case No.: SC128363 Complaint Filed: 11-13-17

Hearing Date: 7-16-20 Discovery C/O: None

Calendar No.: 7 Discover Motion C/O: None

POS: OK Trial Date: None

SUBJECT: MOTION TO SET ASIDE/VACATE DEFAULT AND DEFAULT JUDGMENT 

MOVING PARTY: Defendant Ashley Myung Shin Kim

RESP. PARTY: None as of 7-9-20.  Due on 7-2-20.

TENTATIVE RULING

Defendant’s Motion to Set Aside/Vacate Default and Default Judgment is GRANTED.

“The court may, upon motion of the injured party, or its own motion, correct clerical

mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed,

and may, on motion of either party after notice to the other party, set aside any void judgment or

order.” CCP §473(d).

“Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction.  Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.  Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.”  Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.  

CCP §473(d) does not contain any express deadline for seeking relief. “The court may,

upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or

orders as entered, so as to conform to the judgment or order directed, and may, on motion of

either party after notice to the other party, set aside any void judgment or order.” CCP §473(d).

Default judgments that are void on their face may be vacated at any time under section

473(d). “A judgment or order that is invalid on the face of the record is subject to collateral

attack. It follows that it may be set aside on motion, with no limit on the time within which the

motion must be made.”  Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181.

However, a motion for relief from a judgment valid on its face but void for improper

service, is governed by analogy to CCP §473.5. Thus, relief must be sought no later than 2 years

after entry of the default judgment, sooner if notice is given.  See Rogers v. Silverman (1989)

216 Cal.App.3d 1114, 1121-1122 (process server served wrong person).

Defendant filed her motion to set aside default and default judgment on 10-18-19.  The default was entered against her on 2-15-18, and the default judgment was entered against her on 9-5-18.  No written notice of entry of the default or default judgment was served on Defendant.  As such, Defendant’s request for relief under CCP §473(d) based on a void default judgment for lack of service was timely filed within two years of entry of the default judgment.  

Defendant also rebuts any presumption of proper service.  See Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1441-1442 (proper POS raises rebuttable presumption of proper service).  Defendant testifies that she resides and works at 1433 6th Street, Apt. H, Santa Monica, CA 90402.  See Motion, Dec. of A. Kim, ¶6.  The POS of complaint and summons indicates service at 302 Colorado Ave, Santa Monica, CA 90401, Kim’s purported business address.  See POS filed on 1-18-18.  

The burden is on the plaintiff to prove that service of process was effective when the defendant challenges the trial court's personal jurisdiction.  See Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.  The Court notes Plaintiff did not file an opposition by the due date of 3-13-20.

The motion to set aside the default and default judgment is GRANTED.  Because service was void ab initio, Plaintiff was not obligated to answer the complaint and is not required to do so until Defendant establishes proper service.  “A defendant is under no duty to respond in any way to a defectively served summons.”  See Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466; see also Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1251 (requirement of notice "is not satisfied by actual knowledge without notification conforming to the statutory requirements").

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