Pre-Appeal Motion to Quash Service of Process
In Chang v. Wei (June 14, 2007, B192902) (nonpub. Opn), Wei directly attacked the default judgment via his pre-appeal motion to quash service of process and to vacate the default and default judgment and supported that motion with extrinsic evidence. (Strathvale Holdings v. E.B.H, 126 Cal.App.4th at p. 1249.)
Before the hearing date on the motion, however, Wei filed a notice of appeal from the judgment despite the fact that he would have had ample time to file a notice of appeal following a hearing on his motion.
When Wei's motion came on for hearing, the trial court concluded that the notice of appeal deprived it of jurisdiction to rule on the motion and took it off calendar. Rather than voluntarily abandoning his appeal so that the jurisdictional issue could be resolved by way of a direct challenge, Wei pursued his appeal from the default judgment to completion.
In addition, Wei did not appeal from the post-judgment order taking his pre-appeal motion off calendar.
The Court affirmed the default judgment ordering specific performance and containing the trial court's express determination that "Chang made due service of process on Wei."
The Court specifically observed that before the court at the time default judgment was entered was "Chang's counsel's declaration Wei's current address was unknown and a proof of service stating a process server had served the summons, complaint and a copy of the lis pendens on Wei by substituted service on the person in charge of his usual place of business.
The filing of the proof of service created a rebuttable presumption service was proper." (Chang, supra, B192902, at p. 8.)
Inasmuch as "there was no apparent invalidity on the face of the proof of service, and no challenge to the validity of this mode of service on Wei" at the time the default judgment was entered, "the trial court properly entered the default judgment as requested." (Chang, supra, B192902, at p. 8.)