Peter Xu Zhong v. Pohing Chan, et al.

In his FAC in this Case No. 23CV424913, Zhong asserts that the Default Judgment is void on its face for lack of personal jurisdiction because Chan failed to comply with due process because he never served Zhong in the Underlying Case. (FAC, ¶¶ 6-7.) While the Proof of Service indicated Zhong was served on December 8, 2020, Zhong now claims that Zhong was not the person who was served. (Id. at ¶ 8, Ex. A.)

On April 19, 2022, Zhong received a letter from his bank notifying him of a required withdrawal due to a legal order in the amount of $58,315.29. (FAC, ¶ 9.) Zhong was not aware of any legal order against him. (Ibid.) Zhong asserts that the Default Judgment failed to comply with due process requirements because he was not the actual person served. (Id. at ¶¶ 11-14.) Zhong asserts that the probability of Chan obtaining judgment against him on the merits would be unlikely. (Id. at ¶¶ 15-25.)

In this Case No. 23CV424913, Zhong now seeks to adjudicate that the Default Judgment against him in the Underlying Case is void because he was never served with process in accordance with the law.

On November 24, 2025, Chan in this Case No. 23CV424913 filed this Motion for Summary Judgment or, in the alternative, Summary Adjudication under Code of Civil Procedure section 437c. Zhong opposes the Motion.

I. Legal Standard on Motion for Summary Judgment or Summary Adjudication

A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

The “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact[.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.)

If the moving party makes the necessary initial showing, the burden of production shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the

applicable standard of proof.” (Ibid.) “[I]f the court concludes that the [opposing party’s] evidence or inferences raise a triable issue of material fact, it must conclude its consideration and deny the [moving party’s] motion.” (Id. at p. 856.)

Throughout the process, the trial court “must consider all of the evidence and all of the inferences reasonably drawn therefrom[.]” (Aguilar, supra, 25 Cal.4th at p. 844 [internal quotations omitted].) The moving party’s evidence is strictly construed, while the opposing party’s evidence is liberally construed. (Id. at p. 843.)

II. Requests for Judicial Notice

In connection with this Motion, Chan seeks Judicial Notice of the following documents:

1) Proof of Service in Underlying Case (Ex. 1);

2) Abstract of Judgment in Underlying Case (Ex. 2);

3) Writ of Execution issued by Santa Clara County Superior Court (Ex. 3);

4) Memorandum of Costs filed with Writ of Execution (Ex. 4);

5) Debtor Examination to enforce Judgment (Ex. 5); and

6) Declaration filed by Zhong in current lawsuit (Ex. 6).

Chan’s request for Judicial Notice of each exhibit is GRANTED. (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own files].)

In turn, Zhong seeks Judicial Notice of the following:

1) Complaint in the Underlying Case (Ex. A)1;

2) Proof of Service of Summons in Underlying Case (Ex. B);

3) Request for Entry of Default and Court Judgment in Underlying Case (Ex. C);

4) Proof of Service in a separate case involving Zhong (20CV369925) (Ex. D); and

5) Google Maps screenshot showing various routes from Fixlaptop.com to Zhong’s home (Ex. E).

Zhong’s request is GRANTED for each Exhibit.

1 Both Defendant Chan and Plaintiff Zhong labeled their exhibits using numbers. For

clarity, the Court will instead refer to Plaintiff Zhong’s exhibits as Exhibits A through E.

III. Zhong’s Objections to the Chan’s Evidence are Overruled for purposes of this Motion

In Zhong’s separate statement in support of his opposition to the motion for summary judgment he includes several objections to Chan’s evidence. Each objection made in the separate statement is OVERRULED for failure to comply with California Rules of Court, rule 3.1352 requiring all written objections to served and filed separately from other papers in support of the opposition. Even apart from CRC 3.1352, Zhong’s objections are overruled because the Court is quite capable, in the broad exercise of its discretion, of considering Chan’s evidence and giving it whatever weight, if any, that it is due.

IV. Principles governing Independent Action in Equity

This case is an independent action in equity to set aside default judgment for lack of personal jurisdiction, brought under Code of Civil Procedure section 473, subdivision (d). This section states, in part, that a court may, on motion of either party after notice to the other party, set aside any void judgment or order. (Code Civ. Proc., § 473, subd. (d).) The judgment may be valid on its face but void as a matter of law due to improper service. (Kremerman v. White (2021) 71 Cal.App.5th 358, 371.) “A default judgment which is in excess of jurisdiction may be set aside at any time either by motion or by an independent action in equity.” (Don v. Cruz (1982) 131 Cal.App.3d 695, 703, citing Kass v. Young (1977) 67 Cal.App.3d 100, 105.)

A judgment debtor may institute an independent action in equity to set aside a default judgment taken in a prior action due to an alleged failure to properly serve the summons and complaint in accordance with the law. (See Groves v. Peterson (2002) 100 Cal.App.4th 659, 666-670.) Importantly, for purposes of the present Motion, such an independent action is not subject to any time limit. (Id. at p. 670, fn. 5.)

In support of the Motion for summary judgment, Chan makes the following arguments: 1) the default judgment is presumed valid and Zhong cannot rebut the proof of service and 2) the action is time barred by laches and unreasonable delay.

V. While the Proof of Service is entitled to a Presumption of Validity, Zhong carries his burden of raising disputes of fact over whether he was served in the Underlying Action.

Chan correctly points out that a registered process server’s proof of service is entitled to a rebuttable presumption of validity. (Evid. Code, § 647; Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795 [where proof of service complies with applicable statutory requirements, it creates a rebuttable presumption that the service was proper]; Motion, p. 7:6-8.) To support Chan’s assertion that service was proper, Chan provides the proof of service in the Underlying Case that reflects personal service on Zhong at his confirmed residence on December 8, 2020. (Evidence Index, Ex. 1 [proof of service].) The driver’s license attached to the FAC confirms Zhong’s address.

(See FAC, Ex. C.) The proof of service indicates that on December 8, 2020, a registered process server from Galaxy Process Servers, personally served Peter Xu Zhong at 684 Clara Vista Ave., Santa Clara, CA 95050. (Ibid.) Gabriel Aragon (Registration No. 1623) signed the proof of service under penalty of perjury on December 11, 2020. This is sufficient to invoke the presumption of validity.

Further, in response to the FAC’s assertion that there are discrepancies in the listed age, height, and weight on the proof of service, Chan contends that minor descriptive discrepancies do not invalidate service, especially where the description is substantially similar and service occurred at the Zhong’s residence. (Motion, p. 7:11-17.) Here, the proof of service states that the party served was an Asian male with black hair, 45 years old, 5 feet 11 inches tall, and 165 pounds. (Evidence Index, Ex. 1.) In contrast, Zhong asserts he is an Asian male with black hair, but at the time, was 51 years old, 5 feet 9 inches tall, and 175 pounds. (FAC, ¶ 13.) In support, Chan relies on Zhong’s driver’s license to show that the descriptions are similar. Thus, Chan proffers evidence that service was made at Zhong’s address and to a man with substantially similar characteristics.

Based on the foregoing, Chan meets his prima facie burden for purposes of the Motion of establishing that Zhong properly served. Thus, the burden shifts to Zhong to present evidence that raises a triable issue of material fact on this point.

In Opposition, Zhong disputes that he was served in the Underlying Case. While the process server’s notes on this point are so murky and illegible that they becloud this issue rather than illuminate it, Zhong does present evidence through his Sworn Declaration raising a triable issue of material fact over whether he was served in the Underlying Case. Zhong states in his signed declaration, under penalty of perjury, that the proof of service inaccurately describes his appearance. (Zhong Decl., ¶¶ 8-10; FAC, Ex.

C; see also Fernandes v. Singh (2017) 16 Cal.App.5th 932, 941 fn. 6 [a sworn declaration is sufficient to rebut the presumption of service].) Further, Zhong provides evidence that he was at FixLaptop at approximately 11:25 a.m. on December 8, 2020, approximately five minutes before the process server claims personal service occurred. (Silva Decl., Exs. 1-2; Zhong Decl., ¶ 14.) Based on this, the Court finds that Zhong has proffered sufficient evidence to establish there is a triable issue of material fact, which renders summary judgment inappropriate. (See Reid v.

Google, Inc. (2010) 50 Cal.4th 512, 540 [when declarations or testimony submitted by both sides conflict on material facts, the court cannot weigh the evidence in ruling on a motion for summary judgment].)

The Court hastens to add that it does not now find as a matter of fact and does not now rule as a matter of law that Zhong was not properly served in the Underlying Case. Rather, the Court far more modestly finds that Zhong has raised a triable issue of material fact on this point, rendering summary judgment inappropriate here now.

VI. This Independent Action in Equity is not time barred by laches or unreasonable delay.

Chan also asserts laches and unreasonable delay, arguing that the equitable action to set aside the default judgment is not permitted because 1) Zhong failed to act diligently

and 2) Zhong was not prevented from participating in the original action due to extrinsic fraud or mistake. (Motion, p. 8:13-16, citing In re Marriage of Park (1980) 27 Cal.3d 337, 341–342 (Park).) Chan asserts that Zhong waited over two years and two months after the entry of default judgment, after recording of Abstract Judgment on his family residence, and more than 16 months after Chan sought to collect the Judgement balance due through bank levies, to file this action. (Motion, p. 8:18-23.) As a result, Chan argues that laches bar Zhong’s claim here. (Id. at p. 8:22-23.)

Chan’s reliance on Park is unavailing. Park held that a “final judgment may be set aside by a court if it has been established that extrinsic factors have prevented one party to the litigation from presenting his or her case.” (Id. at p. 341 [emphasis added].) In Park, the court stated that “a motion to vacate a judgment should not be granted where it is shown that the party requesting equitable relief has been guilty of inexcusable neglect or that laches should attach.” (Park, supra, 27 Cal.3d at p. 345 [emphasis added].)

Code of Civil Procedure section 473.5 requires that a motion, in an underlying case, to set aside default judgment as void for defective service of process must be filed within a reasonable time not exceeding two years from the entry of default judgment. (Code Civ. Proc., § 473.5.) If this were a motion brought in the Underlying Case, such a motion may have been untimely. But California precedent holds that that “an independent action in equity to set aside a judgment on [the ground of improper service] is not subject to a time limit.” (Groves, supra, 100 Cal.App.4th at p. 670, fn. 5; Dill v.

Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444 [stating that even if the motion was untimely, “the void judgment may be attacked by a separate action, without time limit.”]; County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228 [stating same].)

As such, Chan fails to meet his initial burden establishing that Zhong’s claim is barred by the doctrine of laches.

Accordingly, as all of Chan’s arguments for Summary Judgment or Summary Adjudication fail, the Motion is DENIED in all respects.

Conclusion and Order

Accordingly, Chan’s Motion for Summary Judgment or, in the alternative, for Summary Adjudication is DENIED.

SO ORDERED.

Date: June 24, 2026 Hon. Vincent I. Parrett Superior Court of the State of California, County of Santa Clara

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