The opinion
Filed 12/15/25 Margolis & Tisman v. Chen CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MARGOLIS & TISMAN LLP, B333744
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BC512773
v.
SHUN SHENG CHEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Colin P. Leis, Judge. Affirmed.
Blank Rome, Mike Margolis; Zee Law Group, Tappan Zee
and Kimberly Sue Navarro Barrientos for Plaintiff and
Respondent.
Kenner Law Group and Jason J.L. Yang for Defendant and
Appellant.
____________________
In April 2014, Margolis & Tisman LLP won a default
judgment against Shun Sheng Chen. Nearly ten years later,
Chen filed a motion to vacate this default judgment, claiming
Margolis failed to serve him properly and used “bad addresses.”
The trial court denied Chen’s motion and he appealed. We
affirm. Substantial evidence supports the trial court’s factual
finding that Margolis personally served Chen and the court
correctly found the judgment against Chen was not void.
Statutory citations are to the Code of Civil Procedure.
I
Margolis had initially sued Chen and three related
corporate defendants (Bountiful Biotech Corp., Bountiful Natural
Healing, Inc., and King Shop International) in June 2013.
Margolis hired Ace Attorney Service, Inc. to serve Chen.
In November 2013, Margolis filed a proof of service of
summons, stating it had served Chen by substituted service.
Margolis attached a declaration of due diligence from Ace, which
reflected that Ace had made a total of nine attempts to serve
Chen at two different addresses: the first address was 267 N.
Quail Lane in Orange, and the second address was 3111 W.
Lincoln Avenue Suite B in Anaheim. In most of the attempts, no
one responded when the process server arrived at the address
and knocked on the door.
The ninth attempt took place on November 14, 2013. At
10:55 a.m. that day, Ace employee Sidney Foster arrived at the
Lincoln address and spoke with “Dr. Chen (Asian male, 5’ 6”, 5’
10”, 140 lbs, Brown eyes, Glasses, Black/Grey hair)[,] who . . .
while pointing at the name Shun Sheng, [] stated ‘I don’t go by
that name.’ ” After the Asian male refused to state his full name,
Foster left the lawsuit documents in his presence and mailed
copies of the documents to the Lincoln address. In the proof of
service form, Foster stated they served “ ‘John’ Chen (Asian male,
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56 yrs, 5’ 10”, 140 lbs, Brown eyes, Glasses, Black/Grey hair),
Doctor.”
In December 2013, Margolis filed an amended proof of
service of summons. According to this amended proof of service,
Foster personally served King Shop International by serving
Chen, its director and CEO, on November 14, 2013 at the Lincoln
address.
That same month, the court granted Margolis’s request for
the entry of a default against Chen. In April 2014, the court
entered judgment in favor of Margolis and against Chen and the
three corporate defendants, and ordered Chen to pay damages,
prejudgment interest, and costs totaling over $92,000.
More than eight years later, in November 2022, the court
granted Margolis’s request to renew its judgment against Chen.
By then, over $78,000 in postjudgment interest had accrued.
In August 2023, Chen received a notice of levy on his Bank
of America account from the Sheriff’s Department.
Soon thereafter, Chen filed a motion to set aside the default
and default judgment under sections 473, subdivision (d) (section
473(d)) and 418.10. Chen included with his motion a sworn
declaration stating he was not at the Lincoln address on the day
Foster attempted service there, and that he was not the “Dr.
Chen” Foster described in the due diligence declaration. Chen
pointed out that he is “only 5’ 4” tall” and the people Foster spoke
to “were 5’ 6” and/or 5’ 10” tall” and that he was 63 years old in
November 2013. Thus, Chen argued that Margolis did not
properly serve him because although process server Foster
claimed to serve him personally, the due diligence declaration
showed “conflicting and/or inconsistent information.” Chen
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claimed he was unaware of Margolis’s lawsuit against him until
he received the notice of levy from the Sheriff’s Department.
The next month, Margolis deposed Chen.
At the deposition, Chen admitted the Lincoln address was
his wife’s acupuncture office and that he visited this office
occasionally. When Margolis’s attorney asked how Chen knew he
was not at the Lincoln address in November 2013, Chen
responded that he was “most likely” not in the office because he
travelled frequently to sell supplements and said “I’m pretty
sure, most likely, I was not in the office.” Chen further testified
that the only “Dr. Chen” at the Lincoln address was his wife, Dr.
Julie Chen.
Margolis’s attorney showed Chen a printout from the
California Acupuncture Board from July 2015. The printout
included the following information:
Licensee Name: Chen Shun Sheng
License Type: Licensed Acupuncturist
Expiration Date: December 31, 2015
Issue Date: November 5, 2004
Address: 3111B W Lincoln Ave
City: Anaheim
State: CA
Zip: 92801
County: Orange
Chen admitted he was the licensee described in the printout and
that he had given this Lincoln address to the California
Acupuncture Board. He also testified he was aware that
California law required him to provide the Board with a correct
address to receive notices and information relating to his
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acupuncture license. If there was mail for him at the Lincoln
address, Chen said his wife would bring it to him.
When Margolis’s attorney showed Chen the various proofs
of service and asked if he had any reason to believe they
contained false statements, Chen replied that they were false
because the three companies he owned “were closed before 2010.”
In Margolis’s opposition to Chen’s motion, it pointed out
Chen’s deposition testimony undermined his claim that Margolis
never served him. Specifically, Chen could not credibly deny
being at the Lincoln address in November 2013 and thus could
not overcome the presumption of validity of service. Chen also
never denied receiving the mailings of the court documents that
were addressed to him personally.
The court held a hearing on Chen’s motion in October 2023.
After hearing argument, the court denied Chen’s motion for
failure to comply with the requirements of section 473.5.
Specifically, the court found Margolis personally served Chen on
November 14, 2013. Thus, as Chen did not file his motion until
August 2023, his motion was untimely. Moreover, the court
noted Chen’s motion was substantively deficient because it failed
to include an affidavit that any purported lack of notice did not
result from his avoidance of service or inexcusable neglect, and
did not include a copy of his proposed answer to Margolis’s
complaint.
II
On appeal, Chen contends the trial court should have
evaluated his motion under section 473(d), not section 473.5.
Chen maintains that Margolis never personally served him and
attacks the credibility of the process server, arguing the “critical
flaw” in Margolis’s proof of service is that he is only 5’ 4”, and the
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discrepancy between his actual height and the description in the
due diligence declaration shows the process server “mistakenly or
knowingly served someone other than [Chen].”
The first step here is to examine the trial court’s factual
finding that Margolis personally served Chen on November 14,
2013. We review this factual finding for substantial evidence.
(Falahati v. Kondo (2005) 127 Cal.App.4th 823, 828 (Falahati)
[“On appeal from an order denying a motion for relief from
default or a default judgment we will not disturb the trial court’s
factual findings where, as here, they are based on substantial
evidence”].)
As Margolis points out, its filing of a sworn proof of service
created a rebuttable presumption that service was proper. (See
Lee v. Yan 115 Cal.App.5th 975, 978 (Lee).) This presumption is
codified in section 647 of the Evidence Code. Thus, Chen bore the
burden of proving service was not proper.
The trial court found Chen failed to meet this burden and
chose to believe the process server over Chen. We defer to the
trial court’s finding that Chen was not credible, which has ample
support in the record. (See Falahati, supra, 127 Cal.App.4th at p.
828.)
Contrary to Chen’s assertions, the Lincoln address was not
“bad”; it was the address Chen’s wife used for her medical office,
the one he reported to the Acupuncture Board, and where he
admitted to receiving mail. The Lincoln address was thus a valid
address to serve Chen. (See Lee, supra, 115 Cal.App.5th at p. 978
[rejecting a defendant’s attack on a process server’s sworn
declaration averring service on defendant’s “usual place of
business” where the defendant presented a “changing and
incomplete story” of her whereabouts.])
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Moreover, in his deposition, Chen also could not say with
absolute certainty that he was not present at the Lincoln address
when the process server averred they had personally served him.
When Margolis asked Chen what made him certain that he was
not at the Lincoln address on November 14, 2013, Chen replied:
“Most likely, I was not in the office, just like I said. Reason
number one, I travel a lot to sell supplements to support the
family. Reason number two, [the Lincoln address], that was my
wife’s, Dr. Julie Chen’s, clinic office. I went to her office only
upon her request to do the range of motion treatment, rotation
on, and massage on her patients. When that work was done, I
left the office. And, by the way, the other reason is her clinic
office was always locked in order to not let the homeless break
in.”
Chen points to the discrepancy between Chen’s reported
height of 5’ 4” and the heights listed in the process server’s due
diligence declaration and the fact that he was 63, not 56 at the
time of service. But these discrepancies are relatively minor in
comparison to the substantial evidence supporting the trial
court’s finding of proper service. These height and age
discrepancies are not sufficient to disprove or rebut the
presumption that Margolis served Chen properly. (Cf. American
Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383,
390–392 [no presumption of proper service where the proof of
service “on its face indicates that the process server did not
comply with the rules governing service”].)
Having found that substantial evidence supports the trial
court’s factual finding of proper service, we now address Chen’s
contention that the trial court erred by analyzing his motion
under section 473.5, not section 473(d). We independently review
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issues of statutory interpretation and application. (See Be v.
Western Truck Exchange (1997) 55 Cal.App.4th 1139, 1143.) The
trial court correctly determined section 473.5 was the correct
avenue for Chen’s motion. Section 473(d) applies only to
situations “where the judgment is ‘void,’ such as when the
defendant has not been properly served.” (California Capital Ins.
Co. v. Hoehn (2024) 17 Cal.5th 207, 215.) But because Margolis
did properly serve Chen, Chen’s only avenue for relief was
section 473.5(a), which applies when service is proper but the
defendant did not receive actual notice. (See ibid.)
To the extent Chen seeks to challenge the trial court’s
analysis under section 473.5, he forfeited any ability to do so by
failing to make any arguments about section 473.5 before the
trial court. (See Quiles v. Parent (2018) 28 Cal.App.5th 1000,
1013 [“Failure to raise specific challenges in the trial court
forfeits the claim on appeal”].) Furthermore, any attempt to do
so would be futile, as the record shows Chen failed to comply with
section 473.5’s requirements. (See § 473.5, subds. (a) & (b).)
DISPOSITION
We affirm and award costs to Margolis.
WILEY, J.
We concur:
STRATTON, P. J. VIRAMONTES, J.
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