Judge: Anne Richardson, Case: 21STCV40588, Date: 2024-08-26 Tentative Ruling

Case Number: 21STCV40588    Hearing Date: August 26, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

            On November 4, 2021, Plaintiff Heungseok Shin (Shin) filed a complaint against Defendants Byeong Yel Cho, aka Pick Hun (Cho), and Does 1 through 20 alleging (1) breach of contract; (2) fraud; (3) constructive trust; (4) quiet title; and (5) specific performance on the grounds that Shin conveyed title to 2106 Greenwood Court, Fullerton, CA 92833 (the Property) to Cho in exchange for an $800,000 loan under the agreement that Cho would reconvey the Property to Shin after Cho repaid the loan. (Compl. ¶¶ 6-8.) Shin alleges that he repaid Cho, but Cho did not reconvey the property. (Compl. ¶¶ 9-10.)

            On March 9, 2023, Shin filed a proof of service of the summons and complaint on Cho on January 22, 2023 at his 3785 Wilshire Blvd., #1709, Los Angeles, CA 90010 address via substituted service followed by mailing.

On March 10, 2023, default was entered against Cho and on April 3, 2023, the Court granted default judgment against Cho.

            On July 17, 2024 Cho filed this motion to set aside the default and default judgment under Code of Civil Procedure section 473.5, arguing that he did not have actual notice of the lawsuit. Shin opposes. No reply appears in the record.

Request for Judicial Notice

Pursuant to Evidence Code section 452, subdivision (d), the Court may take judicial notice of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” The court however may not take judicial notice of the truth of the contents of the documents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to show their existence and what orders were made such that the truth of the facts and findings within the documents are not judicially noticeable. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.) 

Shin seeks judicial notice of the grant deed filed on November 20, 2017, in the Los Angeles Recorder’s Office, bearing recording #: 20171330624. (Request for Judicial Notice, p.2, Ex. A.) The court takes judicial notice to the extent of the document’s existence.

Motion to Set Aside/Vacate Default and Default Judgment

Legal Standard

The defendant can directly attack the entry of default or default judgment on the ground that even though service was proper, the defendant did not receive actual notice of the action. (Code Civ. Proc., § 473.5, subd. (a).) Actual notice means the party had genuine knowledge of the action; it does not contemplate notice attributable to apart from an attorney’s actual notice. (Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077.) Lack of actual notice usually occurs when service is made by publication, mail, or substitution. (See e.g., Tunis, supra, 184 Cal.App.3d at p. 1074 [publication]; Kodiak Films, Inc. v. Jensen (1991) 230 Cal.App.3d 1260, 1261-62 [mail and substitution].) If the defendant receives actual notice from a source other than the service of summons, the court may still grant the defendant relief under Code of Civil Procedure section 473.5. (See Ellard v. Conway (2001) 94 Cal.App.4th 540, 548; Olvera v. Olvera (1991) 232 Cal.App.3d 32, 40.) If the court grants the motion to vacate, the court can set aside the entry of default or the default judgment on whatever terms it deems just and allow the defendant to defend the action. (Code Civ. Proc., § 473.5, subd. (c).) Relief under Code of Civil Procedure section 473.5 is discretionary. (Code Civ. Proc., § 473.5, subd. (c).)

“When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” (Code Civ. Proc., § 473.5, subd. (a).)

Analysis

According to proofs of service on file with the court, Cho was served with the summons and complaint via substituted service by leaving the documents with a woman named Ara at the 3785 Wilshire Blvd., #1709, Los Angeles, CA 90010 address on January 22, 2023. The summons and complaint were subsequently mailed to the same address.

Cho states that he left California in March 2020 and has not returned to the U.S. since. (Cho Decl. ¶ 8.) He states that he only became aware of the complaint against him in May 2024, when he asked a friend to help sell his property. (Cho Decl. ¶ 3.) The friend informed him that the deed to the property was null and void. (Cho Decl. ¶ 3.)  Following this, Cho contacted an attorney, who then notified him about the complaint and the default judgment. (Cho Decl. ¶ 4-9.)

In opposition, Shin incorrectly relies on Code of Civil Procedure section 473 subdivision (b) and cases interpreting the same, pertaining to relief from judgment when caused by mistake. (Opp., pp. 3-6.) (Code Civ. Proc., § 473 subd. (b).) Here, Cho moves to set aside the default judgment under Code of Civil Procedure § 473.5, pertaining to relief from judgment when a party has not received actual notice. (Code Civ. Proc., § 473.5, subds. (a)-(c).) Shin also argues that Cho owns the 3785 Wilshire Blvd., #1709, Los Angeles, CA 90010 property at which he was served. However, since Cho claims he did not live at the property when the service was completed, simply proving ownership is not sufficient to demonstrate that he had actual notice.

Thus, Cho did not have actual notice of the summons. Moreover, the motion was filed within the two-year period required. Thus, the Court will exercise its discretion and grant the motion so as to allow for a trial on the merits.

Conclusion

Defendant Byeong Yel Cho’s Motion to Set Aside Default and Default Judgment is GRANTED.

Defendant must file his proposed Answer within 30 days. If no such responsive pleading is filed, the Court will issue an Order to Show Cause why the default should not be reinstated.