Filed 4/21/22 1412 Alameda v. Chung CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Susan Bryant-Deason, Judge. Judgment vacated.

Peirano & Associates and Sean Raymond Bozarth for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_______________________

Appellant Peter C. Chung rented a piece of commercial property from respondent 1412 Alameda, LLC (Alameda). Seven months into the lease, Alameda sued Chung for breaching the lease. At Alameda’s request, the trial court eventually dismissed the original complaint against Chung without prejudice. Alameda then quickly filed an amended complaint seeking approximately $100,000 in back rent and repair costs. When Chung did not timely respond to the amended pleading, the trial court issued a default judgment against him.

Chung argues that the trial court’s default judgment is void. Despite having had ample time and opportunity to file a response, Alameda has failed to submit any appellate papers and is now unrepresented by counsel.[1] We will therefore resolve the matter based solely on Chung’s arguments and the record presented. (Cal. Rules of Court, rule 8.220(a)(2) [if respondent fails to file a responding brief after receiving notice from this court, “the court may decide the appeal on the record, the opening brief, and any oral argument by the appellant”].)

Because Alameda failed to properly serve Chung with the amended complaint, the default judgment against him is void. Accordingly, we vacate it.

FACTUAL AND PROCEDURAL BACKGROUND

On February 11, 2019, Chung entered into a lease agreement with Alameda for a piece of commercial property located in downtown Los Angeles. Alameda agreed to lease the property for two years. Among other terms, the lease agreement stated that “in no event any cannabis cultivation shall take place within the premises.”

On or about August 10, 2019, Alameda allegedly learned that Chung was running an unlicensed cannabis business on the property and served him with a 30-day notice terminating the lease.

On September 9, 2019, Alameda filed suit against Chung, stating claims for breach of lease, public and private nuisance, declaratory relief, and unlawful business practices. Among other things, the suit sought damages available under the lease.

On October 16, 2019, Chung filed a motion to quash service of summons. He argued that Alameda had issued a procedurally defective summons because it described itself as a Delaware limited liability company rather than a California limited liability company. Alameda opposed the motion, arguing that the misidentification of its state of incorporation was an insignificant typographical error in the caption of the summons and complaint, and that the actual text of these documents correctly identified it as a California limited liability company.

On October 31, 2019, Alameda filed an ex parte application to advance the motion to quash service of summons.[2] That same day, the trial court issued a minute order granting the ex parte motion, stating “[t]he Ex Parte Application TO ADVANCE HEARING ON MOTION TO QUASH filed by [Alameda] on October 31, 2019 is Granted.” The remainder of the minute order, in pertinent part, reads as follows: “Plaintiff’s Motion to Quash currently set for 11/14/19 is advanced to this date; heard and granted. [¶] The Court finds the caption referenced in the complaint and summons, ‘a Delaware limited liability company,’ does not affect the court’s jurisdiction.” The trial court also set a case management conference for December 11, 2019.

On November 22, 2019, a default was entered against Chung.

On September 2, 2020, the trial court granted Alameda’s request for dismissal without prejudice.

On September 21, 2020, Alameda filed an amended complaint seeking $96,000 in back rent, for the period beginning September 2019 until the lease expired in February 2021, as well as $3,350 in cleaning and repair costs. Alameda served this amended complaint on Chung by mail at the subject property, and also by mail at a separate address in Bellflower, but it did not serve Chung’s counsel. Chung did not respond.

On December 8, 2020, the trial court entered a default against Chung, notice of which was sent to the same two addresses as on the amended complaint.

On January 20, 2021, the trial court entered a default judgment for damages, attorney’s fees, and costs in the amount of $123,628.50.

Chung timely appealed.

DISCUSSION

Chung argues that, because the amended complaint was not properly served, he cannot be bound by the resulting default judgment. Because we agree with this argument, we need not address Chung’s argument based upon his motion to quash service of the summons in the original complaint.[3]

Notice of a claim in a civil action is given by service of a summons on the person, unless otherwise provided by statute. (Code Civ. Proc., § 413.10; see also Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1152.) When a plaintiff first files a complaint against a party who resides in California, summons must be served in one of the four basic methods provided for in the Code of Civil Procedure. (See Code Civ. Proc., §§ 415.10 [personal delivery], 415.20 [substituted service on a person at least 18 years of age at the person’s residence or business], 415.30 [delivery by first class registered mail, effective once the recipient sends a written acknowledgement of receipt], 415.50 [publication].)

A plaintiff ordinarily need not repeat the process of serving summons for any amendments to the initial complaint; simple service by mail pursuant to Code of Civil Procedure section 1012 will sufficiently inform the defendant of an amended complaint. (Engebretson & Co. v. Harrison (1981) 125 Cal.App.3d 436, 441; Gillette v. Burbank Community Hosp. (1976) 56 Cal.App.3d 430, 433.) However, “[w]here the defendant has failed to appear in the action, service of an amended complaint in the manner provided for service of summons, while not necessarily a requirement for personal jurisdiction [citation], is an essential prerequisite to a valid default judgment [citation].” (Engebretson, supra, at p. 443.)

Alameda was required to serve the summons to provide adequate notice of its amended complaint before obtaining a default judgment against Chung. Its failure to do so renders the trial court’s default judgment void. (Rios v. Singh (2021) 65 Cal.App.5th 871, 880 [“ ‘ “[A] default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void” ’ ”]; see Engebretson & Co. v. Harrison, supra, 125 Cal.App.3d at p. 444 [the proper remedy when default judgment is entered on the basis of an inadequately served amended complaint is vacation of the default judgment].)

DISPOSITION

We vacate the default judgment entered against Chung on January 20, 2021. Chung is entitled to costs on appeal.

NOT TO BE PUBLISHED

CRANDALL, J.*

We concur:

ROTHSCHILD, P. J. CHANEY, J.

[1] On November 5, 2021, Alameda’s trial counsel, Michael Abramson, informed this court that he was no longer its attorney of record. Despite being given ample time, he did not file a substitution of counsel with this court as requested.

On November 10, 2021, Eva Weiss informed this court that her husband, Gabriel Weiss (purported manager of Alameda), had passed away on July 23, 2021, and that she no longer wished to pursue the matter any further.

[2] This motion does not appear in the record.

[3] We note the trial court’s ruling on Chung’s motion to quash the original complaint is internally inconsistent, possibly because of a clerical error. In any event, the original complaint has no relevance because “ ‘ “[a]n amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.” ’ . . . ‘[T]he filing of an amended complaint [also] renders moot a [motion directed to a prior] complaint.’ ” (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477.)

* Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.