Anqin Wang v. Fang Zeng

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 11, 2023
• Docket: 22-56141
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 11 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANQIN WANG, No. 22-56141

Plaintiff-Appellee, D.C. No. 2:17-cv-08936-MWF- RAO v.

FANG ZENG, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Submitted December 7, 2023** Pasadena, California

Before: WARDLAW, LEE, and BUMATAY, Circuit Judges.

Fang Zeng appeals the district court’s denial of her motion to vacate the

court’s entry of default and default judgment against her under Federal Rule of Civil

Procedure 60(b)(4). We have jurisdiction under 28 U.S.C. § 1291. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We review the denial of a motion to vacate a judgment under Rule 60(b)(4)

de novo, but we review the district court’s factual findings about jurisdiction for

clear error. SEC v. Internet Sols. for Bus. Inc., 509 F.3d 1161, 1165 (9th Cir. 2007);

Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998).

Rule 60(b)(4) provides that a court may relieve a party from a final judgment

if that judgment is void. Fed. R. Civ. P. 60(b)(4). And the Ninth Circuit has long

held that a judgment is void if it was entered against a defendant over whom the

court lacked personal jurisdiction. See, e.g., Ruiz v. Snohomish Cnty. Pub. Util. Dist.

No. 1, 824 F.3d 1161, 1165 (9th Cir. 2016). Assuming the Rule 60(b)(4) motion

was timely, we turn to whether the district court had personal jurisdiction over Zeng

when it entered judgment against her.

1. Wang’s service of process on Zeng was proper. The Federal Rules of Civil

Procedure permit service of process in accordance with state law. Fed. R. Civ. P.

4(e)(1). And California allows service by publication if the party to be served cannot

“with reasonable diligence be served in another manner specified in this article.”

Cal. Code Civ. Proc. § 415.50(a). To effect proper service by publication, notice

must be “reasonably calculated, under all the circumstances, to apprise interested

parties of the pendency of the action and afford them an opportunity to present their

objections.” In re Emily R., 80 Cal. App. 4th 1344, 1351 (2000) (internal quotations

omitted).

2 22-56141 Wang exercised reasonable diligence in attempting to serve Zeng before

requesting service by publication. The district court noted that, in an attempt to serve

Zeng with process, Wang’s private investigator searched California’s official

databases, county clerks’ filings, court dockets, and social media, as well as traveled

to Zeng’s various properties in California. Wang also served Victoria Chan, one of

the defendants and the daughter-in-law of Zeng, with process for both herself and

Zeng, at which point Chan received the papers and said “okay.” Zeng retorts that

service was improper because she was residing in China, not California. But Zeng’s

cited cases, In re D.R., 39 Cal. App. 5th 583, 591 (2019) and Lebel v. Mai, 210 Cal.

App. 4th 1154, 1164 (2012), hold that service is improper when a plaintiff knows

that the defendant resides in another country. The record makes clear that, upon

Wang’s reasonable belief, Zeng resided and could be served in California.1

And Wang’s service by publication was reasonably calculated to give Zeng

notice. The summons was printed in the Los Angeles Times, one of the most widely

circulated newspapers in California, four times over two months. And while the

1 Zeng was the chairwoman of the California Immigrant Investment Fund, an entity which was incorporated in California and has its principal place of business in Los Angeles. Zeng also obtained mortgages on her Arcadia property in 2011 and 2016 which indicate her agreement to occupy the property as her principal residence and which designate it as her mailing address, respectively. That a deed of trust from 2011 lists a Chinese address, and that Wang once met Zeng in an office in China in 2016, are insufficient to show that Wang knew Zeng resided in China.

3 22-56141 case number was misprinted, the publication did not reference a completely

unrelated case. It contained Zeng’s name, and the case number referred to another

lawsuit before the Central District of California in which Zeng is a party. The district

court correctly “[found] it implausible that a defendant, seeing their name in a

published notice, would look up the case number, find that the case number is for a

different action that also names the same defendant, and then deem themselves

absolved of knowledge of either lawsuit – especially when the plaintiff has already

attempted service in several other manners.”

2. Zeng’s argument that the Hague Convention on Service should have

applied also fails. “Where service on a domestic agent is valid and complete under

both state law and under the Due Process clause, our inquiry ends and the [Hague]

Convention has no further implications.” Volkswagenwerk Aktiengesellschaft v.

Schlunk, 486 U.S. 694, 707 (1988). As shown above, service of process was valid

under California law. And service was valid under the Due Process clause because

it was “reasonably calculated . . . to apprise interested parties of the pendency of the

action and afford them an opportunity to present their objections.” United Student

Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 261 (2010) (quoting Mullane v. Central

4 22-56141 Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).2 The district court did not

err by determining that the Hague Convention on Service did not apply.

Because we find that service of process was proper, we do not reach whether

Zeng consented to personal jurisdiction in California. The district court had personal

jurisdiction over Zeng when the judgment was entered. The judgment is not void.

AFFIRMED.

2 The district court noted the extensive surveillance and searches by Wang’s retained investigator and counsel, as well as their visits to several addresses in an effort to effect service on Zeng.

5 22-56141